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Muslim Women (Protection of Rights on Divorce) Act, 1986


Muslim Women (Protection of Rights on Divorce) Act, 1986
Muslim Women (Protection of Rights on Divorce) Act, 1986

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Divorced Wife’s Right to Maintenance: Muslim Women (Protection of Rights on Divorce) Act, 1986


Md. Ahmed Khan v Shah Bano Begum (AIR 1985 SC 945)

The Shah Bano case is a landmark in the context of maintenance rights for divorced Muslim women. Traditionally, it was believed that a divorced Muslim wife’s right to maintenance ceased upon the expiration of the Iddat period.



However, this general proposition does not address situations where a divorced wife is unable to maintain herself. Limiting maintenance to the Iddat period without considering the wife's financial incapacity would be unjust and unfair.



Case Background: Shah Bano, married to Md. Ahmed Khan in 1932, was driven away by her husband in 1975, along with their five children. Having managed the matrimonial home for over 40 years, she was left incapable of supporting herself or taking up a career at her advanced age. Remarriage was also not an option for her.



Consequently, Shah Bano filed a petition under Section 125, Cr.P.C., seeking maintenance of Rs. 500 per month. In 1978, her husband divorced her by pronouncing an irrevocable talaq.



Legal Arguments: Md. Ahmed Khan contended that under Muslim law, his liability to maintain Shah Bano extended only for the Iddat period. He argued that once the dower (Mahr) had been paid, his obligations under Section 125, Cr.P.C., should be considered fulfilled, referencing Section 127(3)(ii) of the Cr.P.C. which recognizes this principle.



Supreme Court's Judgment: Chief Justice Chandrachud opined that under Muslim personal law, a divorced wife unable to maintain herself is entitled to maintenance for her lifetime or until she remarries. As long as she has not remarried, she is considered a 'wife' under Section 125, Cr.P.C., and thus eligible for maintenance.



If she can support herself, the husband’s liability ceases after the Iddat period. However, if she remains unable to maintain herself, she can seek recourse under Section 125, Cr.P.C.



Conditions Under Section 127(3), Cr.P.C.: A divorced wife's claim for maintenance is subject to Section 127(3), Cr.P.C., which stipulates the cancellation of maintenance orders under certain conditions:


- If the divorced woman has remarried.


- If she has received the entire sum due under any customary or personal law.


- If she voluntarily relinquishes her right to maintenance after divorce.


The Court noted that Section 127(3)(ii) had been misused, being interpreted to imply that the Magistrate must cancel maintenance orders if the divorcee has received the customary sum due upon divorce, typically the Mahr.



The Court in Bai Tahira v Ali Hussain (1979) 2 SCC 316 held that, irrespective of the Mahr amount, a reasonable sum is always due for a Muslim wife's maintenance. Liquidated sums paid at the time of divorce can release the husband from ongoing liability only if they are sufficient to realistically maintain the divorcee.



Payments of trivial amounts under customary law will reduce but not nullify the maintenance rate unless they are reasonable substitutes.



In the Shah Bano case, the Supreme Court held that Mahr does not fall within the meaning of Section 127(3)(ii). Consequently, a divorced woman is entitled to claim maintenance even if she has received the entire Mahr.



The Court clarified that Mahr is not an amount payable upon divorce, but rather an obligation imposed upon the husband in respect of the marriage itself. It is a mark of respect for the wife, not a condition of divorce.



This landmark judgment underscored that a divorced Muslim woman’s right to maintenance does not terminate with the Iddat period if she cannot support herself, affirming her right to seek maintenance under Section 125, Cr.P.C.

 
 

Muslim Women (Protection of Rights on Divorce) Act, 1986 


The Shah Bano judgment sparked an unprecedented debate and controversy regarding Muslim women’s right to claim maintenance after divorce. This controversy ultimately led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. However, does this Act provide the necessary protection to divorced Muslim wives?



The Act aims to protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands and to address matters connected with and incidental thereto, as stated in its Preamble.



A "divorced woman" under the Act refers to a Muslim woman who has married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with Muslim law. The Act does not apply to wives whose marriage is legally subsisting.



Under Section 3 of the Act, a divorced woman is entitled to receive a "reasonable and fair provision and maintenance" from her husband, provided he has sufficient means. The husband is required to fulfill this obligation within the Iddat period.



Section 3 of the Act begins with a non-obstante clause that overrides all other laws and stipulates that a divorced woman shall be entitled to:


- A reasonable and fair provision and maintenance, to be made and paid to her by her former husband within the period of Iddat.


- A reasonable provision and maintenance for the children born to her before or after her divorce, to be made and paid by her former husband for a period of two years from the respective dates of birth of such children.


- An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law.


- All properties given to her before, at the time of, or after the marriage by her relatives, friends, husband, and any other relatives or friends of the husband.



Under Section 4 of the Act, a Muslim wife who has not remarried and is unable to maintain herself after the Iddat period can claim reasonable and fair maintenance from her relatives (those entitled to inherit her property upon her death).



If these relatives are unable or unwilling to provide maintenance, she can claim it from the State Wakf Board. Provided that if she has children, the court may order those children to pay maintenance to her. If the children are unable to do so, the court shall order the parents of the divorced woman to pay maintenance, unless they too are unable to provide support.



The 1986 Act provides that a maintenance order can be enforced by levying fines as provided under the Cr.P.C. The court may sentence the person responsible for the payment to imprisonment for a term of up to one year or until the payment is made, whichever is sooner, if any amount remains unpaid after the execution of the warrant.



The parties have the option to proceed under Sections 125-128, Cr.P.C., or under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Section 5). Notably, the Act does not contain any provision that nullifies orders passed under Section 125, Cr.P.C. It should be noted that Section 125, Cr.P.C. defines "wife" to include a divorced woman.



The provisions of Section 125, Cr.P.C. would apply only if both parties choose to be governed by this section at the first hearing under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and not in any other circumstance [Rashida Khanum v. S. K. Salim, 1996 AIHC 1001 (Ori)].



The 1986 Act, which has been both controversial and confusing, has led to conflicting judgments that have caused hardship for divorced Muslim wives.



Some of the complex issues that arose include the husband's liability to pay maintenance after the Iddat period and the effect of the Act on the provisions of the Cr.P.C.



A  five-judge Bench of the Supreme Court decided these issues in the below discussed case.

DANIAL LATIFI & OTHERS v. UNION OF INDIA  [(2001) 7 SCC 740]: The liability of a Muslim husband to provide maintenance to his divorced wife, as per Section 3(1)(a) of the 1986 Act, extends beyond the Iddat period. The husband is required to make a reasonable and fair provision for the future of the divorced wife within the Iddat period. This provision may include her residence, food, clothing, and other necessities.



The 1986 Act essentially codified the principles established in the Shah Bano case, replacing the scheme provided under the Cr.P.C. Thus, what could previously be granted by a Magistrate under Section 125, Cr.P.C., is now provided for under the Act. Consequently, the Act cannot be deemed unconstitutional.



In this case, the petitioners challenged the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which made Section 125, Cr.P.C. inapplicable to divorced Muslim women. They argued it violated Articles 14, 15, and 21 of the Constitution. The Supreme Court dismissed the petition.



The Court observed that the Act's purpose was to ensure that a Muslim husband makes reasonable and fair provision for his divorced wife's future, including her maintenance. The husband's liability is not confined to the Iddat period; rather, he must make and pay maintenance within the Iddat period for a duration extending beyond it.



If a divorced Muslim woman, who has not remarried, is unable to maintain herself after the Iddat period, she can seek maintenance from her relatives who would inherit her property. If these relatives cannot pay, the State Wakf Board may be directed to provide maintenance.



Thus, the "reasonable and fair provision" and "maintenance" extend to the lifetime of the divorced wife unless she remarries. The Act, in effect, maintains the protective measures established in the Shah Bano case and ensures that a divorced Muslim woman is not left destitute.



Shabana Bano v. Imran Khan [(2010) 1 SCC 666]: In this case, the Court held that a divorced Muslim woman is entitled to claim maintenance from her husband under Section 125, Cr.P.C., even after the Iddat period, as long as she does not remarry.



The maintenance awarded under Section 125 is not restricted to the Iddat period alone. This interpretation aligns with the judgments in Danial Latifi and Iqbal Bano, ensuring the benefit of this legislation accrues to divorced Muslim women.



Leading Case Law


NOOR SABA KHATOON v. MOHD. QUASIM [AIR 1997 SC 3280]

This case addresses whether the children of divorced Muslim parents can claim maintenance under Section 125, CrPC until they reach majority or self-sufficiency, or if their right is limited to two years as per Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.



The appellant married the respondent according to Muslim rites and had three children. After disputes, the respondent refused to maintain the appellant and their children, subsequently divorcing her and taking a second wife. The appellant, with no means of support, filed for maintenance under Section 125, CrPC.



The trial court ordered the respondent to pay Rs 200 per month to the appellant and Rs 150 per month for each child until they reached majority. After the divorce, the respondent sought to modify this order, citing the 1986 Act.



The trial court reduced the appellant's maintenance to the Iddat period but upheld the children's maintenance order. The High Court, however, restricted the children's maintenance to two years as per the 1986 Act.



The Supreme Court examined whether Section 3(1)(b) of the 1986 Act affects the rights of minor children to claim maintenance under Section 125, CrPC. It held:


1. The 1986 Act aims to protect divorced Muslim women, not to govern the maintenance of minor children.


2. Maintenance for children under Section 3(1)(b) of the 1986 Act is separate from their right to claim maintenance under Section 125, CrPC.


3. A Muslim father's obligation to maintain his minor children under Section 125, CrPC is absolute until they attain majority or self-sufficiency, or in the case of daughters, until marriage.


4. The non-obstante clause in Section 3(1)(b) of the 1986 Act pertains only to the maintenance rights of divorced women and does not affect the children's rights under Section 125, CrPC.



The Court concluded that the father's obligation to maintain his minor children is independent of the 1986 Act and remains until they reach majority or, for females, marriage, regardless of their living arrangements with the divorced mother.

 
 

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