jagadeesh krishnan law

Introduction

With the passage of time, mankind has clamoured for special privilege and treatment, and societies across the world have looked towards the courts for benevolent interventions. For this purpose sociological jurisprudence has come a long way from being a theoretical stream towards being consulted for mass reforms by the courts. The Supreme Court of India has played a major role, as the final arbiter of the Constitution. In its performance of this role the Supreme court of India has bring about equality and social change, building way for an advanced and modern outlook. The perspective has been entirely societal oriented and therefore 'social change', has been made the focal point. The approach is to analyze the decisions of the Court, as the reflection of its opinion and contribution towards the attainment of this egalitarian objective. Supreme Court has even played a major role in the upliftment of the conditions of women in India through its landmark judgements.

Muslim marriage has always been a contract and it has been very easy to dissolve a Muslim marriage even. The plight of a woman after divorce can only be imagined. The predominance of Muslim personnel law in India, before and after independence only provided for maintenance for a specific period of time after which the responsibility of the husband ceases to maintain his divorced wife and the sufferings of that divorcee culminates.

Maintenance under Muslim Law:

Under Sharia4, maintenance is payable to wife children and parents. It is an obligation imposed on the part of the parties to a marriage agreement which creates a familiar relationship between the spouses. Islam provides some concept of maintenance which must be taken into account while providing maintenance.

1) Islam permits only those people except wife to be maintained by others who are bound to depend on others, either because of immaturity (or old age) or because they have no means to support themselves. A person is entitled to be maintained by others only in the extreme situation when there is no alternative except begging for one‟s livelihood.

2) The obligation to maintain, and to bear the burden of fooding and lodging, etc., of others, is reasonably restricted in Islam. The Islamic principle is that a person should not be allowed to suffer any monetary loss in maintaining others. In other words, maintenance of a person, except that of a wife, is to be provided out of the properties of the person who is being maintained whether that person is infant or adult. This is because under Islam the property is basically an individual property, there is no concept of any joint family property.

These two basic principles of Islamic law of maintenance may appear to be contradictory to each other. This is because the texts and the authorities on Muslim law have not clearly separated

Role of the Supreme Court:

The intention of this apex court gets reflected in its land mark judgements. To start with, the famous case of Mohd. Ahmed Khan v. Shah Banu Begum, where the Supreme Court have given a decision, which extended the obligation of the husband to maintain her divorced wife even after the period of Iddat. This decision gave way for controversies in the Muslim world.

a) Shah Bano’s Case: Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim family law allows the husband to divorce his wife without his wife's consent. The husband just needs to say the word Talaq (meaning divorce) before witnesses for a valid divorce. Shah Bano had no means to support herself and her children. She approached the court for securing maintenance from her husband. She filed a petition under sec 125 of CrPC in the court of judicial magistrate, Indore asking a maintenance amount of Rs.500 per month. In defence of Shah Bano’s petition her husband took a plea that since he has divorced her wife, he has no obligation to maintain her after the period of Iddat and he has already paid the amount of dower as required by Muslim personnel law.

However the magistrate directed Mohd. Ahmed Khan to pay a nominal amount of Rs.25 per month to his divorced wife, Shah Bano. Against the order of the magistrate Shah Bano filed a revision application in the Madhya Pradesh High court for enhancement of the maintenance amount. The high court enhanced the rate to Rs.179.20 per month. Mohd. Ahmed Khan appealed in the Supreme Court. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court dismissed the appeal and invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.

b) Bia Tahira’s Case: Bai Tahira was married to Ali Hussain in the year 1956 and a son was born to them. Tahira was living in a flat of her husband. In 1962 Ali Hussain gave divorce to his wife Tahira and transferred the flat to her name in lieu of the Dower and Maintenance for the period of Iddat. Bai Tahira remained unmarried and after some time Tahira was facing financial difficulties and filed a petition for maintenance under sec 125 of CrPC. The magistrate ordered for a monthly maintenance allowance. Ali Hussain challenged this order on the ground that, since he has already paid maintenance during the period of Iddat and a wholesome amount in the form of the house as the Dower as under the Muslim personnel law, he was not entitled to pay any more maintenance under CrPC. The Bombay High Court decided the case in favour of Ali Hussain. Bai Tahira appealed in the Supreme Court and the apex court restored the maintenance allowance allowed by the magistrate court and reversed the judgement of the High Court.

The Supreme Court held that irrespective of the amount settled as Mehr, a reasonable amount is always due in to a Muslim wife for her maintenance. The court observed that payment of Mehr money, as a customary discharge, is within cognizance of section 127(3) (b) of CrPC but until this (reasonable amount) is discharged the divorced women continues to be entitled under sec.125 of CrPC if she be entitled to it other wise and has not remarried. The appeal was accordingly allowed and the apex court held that Bai Tahira was entitled to maintenance allowance granted by the magistrate.

 Consequences after Shah Bano’s case:

The orthodox Muslims in India felt threatened by what they perceived as an encroachment of the Muslim Personal Law, and protested loudly at the judgment. Their spokesmen were Muslim community leaders Obaidullah Khan Azmi, Mohd.Akbar and Syed Shahabuddin. They formed an organization known as the All India Muslim Personal Law Board and threatened to agitate in large numbers in all major cities. The then Prime Minister, Rajiv Gandhi, agreed to their demands and cited the gesture as an example of "secularism"

The Indian Government's Reaction:

In 1986, the Congress party, which had an absolute majority in Parliament at the time, passed an act The Muslim Women (Protection of Rights on Divorce) Act 1986 that

nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law:

"Every application by a divorced woman under section 125 of the Code of

Criminal Procedure, 1973, pending before a magistrate on the commencement

of this Act shall, notwithstanding anything contained in that code is disposed of

by such magistrate in accordance with the provisions of this Act."

The Statement of Objects and Reasons of this Act (i.e. the objective of the Act) needs a mention. According to the stated objects of the Act, when a Muslim divorced woman is unable to support herself after the period of Iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the Iddat only. Critics strongly contend that this Act was passed in order to appease minorities and safeguard the Muslim vote bank.

Consequences after the Muslim Women (Protection of Rights on

Divorce) Act 1986 :

The Shah Bano case generated tremendous heat in India. Critics argued that fundamentalist minorities can exert pressure on government and judicial decisions. The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies (which, according to BJP, reflect "Pseudo-secularism").

The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of Rs. 500 (around 12 US Dollars) - an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common. Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by the Indian orthodoxy.

The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 50's, in its metamorphosis as the Bharatiya Janata Party became an advocate for secular laws across the board. However, their opposition to the reforms was based on the argument that no similar provisions would be applied for the Muslims on the claim that they weren't sufficiently advanced. The pressure exerted by orthodox Muslims caused women's organizations and secularists to cave in.

Personal Laws:

The existence of personal laws is, in itself, an indicator of a constitutional bias towards maintaining religious harmony. They have been part of the Civil Law since the British Raj. The importance of personal laws lies in the fact that India is a secular nation with a sizeable concentration of several different religious groups. However, personal laws have been criticized by Feminists for their orthodox approach and for disadvantaging women. Religious rights and women's rights remain at conflict due to the disparities in religious laws. The likelihood that a common civil code for India may be introduced in the future seems bleak as even a discussion of the topic evokes strong reactions.

Judicial craftsmanship has ensured that The Muslim Women's [Protection of Rights on

Divorce] Act has not completely violated the rights of women. High Courts have interpreted "just and fair provision" that a woman is entitled to during her Iddat period

very broadly to include amounts worth lakhs of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination of the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights.

Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the Iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.

MUSLIM WIFE‟S CLAIM OF MAINTENANCE: LAW, ISSUES & REFORMATION

For the claim of maintenance of Muslim wife, the obligation is casted on the husband and this obligation arises out of marital relationship. According to the ordinary sequence of natural events the wife comes first. The wife is entitled to maintenance from her husband although she may have the means to maintain herself and although her husband may be without means.

Muslim wife‟s claim of maintenance is divided in two different branches of law. One under Muslim Personal Law9 and another under general law of maintenance as is reflected in Code of Criminal Procedure, 1973which is a secular remedy.

The husband‟s duty to maintain commences when the wife attains puberty and not before; provided always that she is obedient and allows him free access at all lawful times. If a wife deserts her husband she loses her right to maintenance.12 In addition to the legal obligation to maintain there may be stipulations in the marriage contract which may render the husband liable to make a special allowance to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc. If husband refuses to pay maintenance, the wife is entitled to sue for it. Her right may be based on the substantive law, or she may sue under the provisions of Code of Criminal procedure which provides for general law of maintenance under Section 125 wherein the term “wife” is widely defined and explained13 so as to cover the claim of „legally wedded wife‟ as well as of „divorced wife.‟14 So in short Muslim wife‟s claim of maintenance arises in following circumstances:

1) Out of the status of Husband & Wife (During the subsistence of marriage & out of the legal obligation imposed on the husband.)

2) Out of pre-nuptial agreement and

3) Out of divorce15. (After dissolution of marriage)

With respect to maintenance of divorce wife, right of maintenance commences on divorce or when she comes to know of the divorce and ceases on the death of her husband, for the her right of inheritance supervenes. In other cases where husband is alive and has divorced the wife, she can claim maintenance only during the Iddat16 period and not beyond that. The widow is therefore not entitled to maintenance during the Iddat of death. On this point there was a great controversy among the judiciary when the Supreme Court17 has taken a landmark step and has led to the conflict of law between two different branches of law: Muslim Personal law and general law under Section 125 of Criminal Procedure code, 1973 so far as the claim of (Muslim) divorced wife is concerned, which subsequently led to the enactment of new piece of legislation/law18 applicable exclusively to the Muslim divorced wife.

16

So with respect to the claim of Muslim women‟s right of maintenance, law is divided and reflected in following legislations:

1) Muslim Personal Law (Shariat Application) Act, 193719.

2) Code of Criminal Procedure, 197320

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

Claim of Maintenance during subsistence of marriage

A wife‟s right to be maintained by the husband has been recognized by all personal law in varying degrees. So far as Muslim wives are concerned, the position is same. For a Muslim wife to claim maintenance (during subsistence of marriage) following things must have fulfilled.

1) Marriage must be valid

2) Wife has attained puberty

3) Wife must be faithful and obedient to husband

 Claim of Maintenance out of Pre-nuptial agreement.

It is the prominent feature of Muslim Law that, wife is entitled to recover maintenance from her husband on the basis of an agreement made between the spouse and or their guardian. Agreements22 made between the parties are valid and enforceable.

Claim of Maintenance after dissolution of Muslim marriage:

The rule that, after divorce27, the wife is entitle to maintenance during the period of Iddat28 and until her delivery if she is pregnant, is clear and has been a debated provision since many years. Often judiciary encountered with the difficulty surrounding this rule which provides a minimum right of maintenance as compared to the Hindu divorced lady. This rule has been a bone of contention and on this count there has been a debate in a society as to uniformity29 of the personal laws. Since in Muslim law it is very easy for the husband to get or to give divorce to the Muslim wife, he can very easily escape the liability of providing maintenance to the wife. As mentioned above it is no longer obligatory for the erstwhile husband to provide maintenance beyond Iddat period.

Following are the laws which are related to the aspect of providing maintenance after the dissolution of marriage:

General versus (Muslim) Personal Law: conflict of law:

As mentioned above32 Section 125 of Cr. P.C33 is also applicable to the Muslims including divorced Muslim woman34, irrespective of fact that in Muslim personal law, wife ceases to be wife on Talaq. Muslim husband is liable to provide maintenance for divorced wife who is unable to maintain herself, so long as she had not remarried.35

The fictional relationship of the wife even after the divorce has been created by the statue in view of the social conditions prevalent in the country to prevent former husband to drive their erstwhile wives to a state of poverty and destitution till they remarry. So it is clear that woman continues to be the wife within the meaning of section 125 of Code of Criminal Procedure, 1973 irrespective of religion and application of personal law.

If we look at the Muslim Personal law (as discussed above), on the point of claim of Muslim divorced lady that it is no longer obligatory for the erstwhile husband to provide maintenance beyond Iddat period, it comes in conflict with right of Muslim divorced lady “to claim maintenance u/Sec. 125 of Code of Criminal Procedure. The Code of Criminal Procedure, 1973 is a general law applicable to all the persons irrespective of their religion. Muslim personal law is a special law applicable to those who are professing Muslim religion and those who are convert to Muslim. In the event of conflict between a special law and a general law, it is accepted judicial principle that special law shall prevail over the general law.36

In the wake of this controversy as well as contradiction in the two different branches of law, Supreme Court37 has taken a landmark and bold view by upholding the claim of Muslim divorced lady under Section 125 of Code of Criminal Procedure, 1973. Supreme Court has acknowledged its previous views38 on the same issue.

SHAH BANO CASE & THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986

Shah Bano case had come up before the Hon‟ble Supreme Court, initially, as a special leave appeal before a Bench of two Judges.28 The main contention under the appeal was that, according to the provisions of Muslim personal law, a divorced Muslim woman is entitled to maintenance only during the period of iddat, and since the appellant had already paid to the respondent, the mahr money, which according to him was the sum payable on divorce within the meaning of Section 127(3) (b) of the Code of Criminal Procedure, no further maintenance order could be imposed on him. The law in relation to these questions had been laid down by Supreme Court in Bai Tahira and Fazlunbi. Opining that, these earlier rulings, though correctly decided, were not clear in the context of Section 127 (3) (b) of CrPC, the Division Bench referred the case to the Chief Justice to be heard by a larger Bench. It was held in the Reference Order (dated February 3, 1981) that earlier Supreme Court decisions required reconsideration on two grounds: (i)According to the Division bench, Section 127 (3) (b) of the Code of Criminal Procedure 1973 protects the Muslim law on maintenance rather than overriding it. The exception under the Section shall apply in cases where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed. The earlier decisions were in direct contradiction to this language of Section 127(3) (b) of the Code; and

(ii) Those decisions were also against the fundamental concept of divorce by the husband and its consequences under the Muslim Law which has been expressly protected by Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, an Act which was not noticed by the aforesaid decisions.29

The case was referred to a five Judge Bench which had observed, while discussing about the applicability of the provisions under S.125 of CrPC that these provisions are quite unambiguous and precise to admit of any doubt or refinement. Upholding the secular nature of the provision, the Hon‟ble Court held,

“S.125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of S.125.Such provisions which are essentially of a prophylactic nature, cut across the barriers of the religion . . . . . . . . . . . . ., The liability imposed by S.125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. This is the moral edict of the law and morality cannot be clubbed with religion.”

It was held that, Clause (b) of the Explanation to Section 125(1) is applicable to all women, including Muslim women. The Court held that if the divorced wife has no means of supporting herself, she is fully entitled to take recourse to Section 125 and seek maintenance from her ex-husband until her remarriage or death. The Court also pointed out that there is no conflict between the provisions of Section 125 and those of Muslim personal law on this question, citing Aiyats 24131 and 24232 of the Second Sura of the Holy Quran, which oblige Muslim husbands to provide for their divorced wives. Hon‟ble Court observed that Mahr is paid to wife as a mark of respect to her, and the sum settled by way of Mahr is intended to take care of the ordinary requirements during marriage and after. The Court observed that, these provisions of the Muslim personal law didn‟t contemplate such situations where the wife is unable to maintain herself after divorce and is neglected by her husband who is in possession of sufficient means. The rationale of Section 125 CrPC is to meet a situation where a divorced wife is likely to be led into destitution or vagrancy. Under such situations which were not contemplated under the personal laws, the wife is entitled to take the recourse of S.125 of CrPC. Also the Court had held that Mahr cannot be termed as an amount occasioned by divorce and it shall not fall under the purview of S.127 (3) (b).

On a critical appraisal of the decision it becomes apparent that, the Judges in this case have not evolved any new law for assisting the Muslim women divorcees in obtaining post iddat maintenance from their former husbands, but had merely elaborated the ratio laid down in Bai Tahira and Fuzlunbi. The judgment became highly politicised and was put into the height of controversies by Muslim riots in protest of the judgment and vitriolic attacks against the implications of this judgment for Muslim ex-husbands. The interpretation of Quranic verses by five Hindu Judges, who themselves had no knowledge of Arabic nor any instruction in fiqh (Islamic Jurisprudence) in substantiating the decision, had further antagonised many Muslims.

JUDICIAL INTERVENTIONS

The enactment of the Muslim Women (Protection of Rights on Divorce) Act had ignited a heated political and legal debate as to whether it was a retrograde step taken by an intimidated Government to appease the Muslim vote bank, instead of a pro-woman statute as acclaimed by its Preamble. As I had earlier mentioned, the Act had been widely believed as an appeasing political gimmick, which had nullified the achievements of Shah Bano. Though some of the initial judgments of certain High Courts, that came out in relation to the provisions of the Act, justified the fears raised by the critics, the judgments that came later on, were sufficient enough to allay the fears raised by these debates. Indian Judiciary played a constructive role in construing the Act in such a manner as to fulfill the promises made in its Preamble.

INTERVENTIONS BY VARIOUS HIGH COURTS

The initial judgments which had come out, dealing with the questions under the Act, were in fact highly discouraging and substantiating the fears raised by the critics. In cases like Md. Yunus v. Bibi Phenkani @ Tasrun Nisa36, Abid Ali v. Mst.Raisa Begum37etc, the Patna and Rajasthan High Courts had held the view that, S.3(1) (a) of the Act of 1986 curtailed the right of a divorced Muslim woman to get maintenance for the period of iddat. It was also held that as the Act didn‟t have any saving clause, a divorced Muslim woman would be no longer entitled to claim maintenance from her husband after the period of iddat. The most damaging interpretation was made in Usman Khan Bahamani v. Fathimunnisa Begum and ors. 38, wherein the Hon‟ble High Court of Andhra Pradesh had held that a divorced Muslim woman shall be entitled to maintenance only during the period of iddat and not beyond that. Giving a narrow interpretation to the word “within” occurring in S.3 (1) (a) of the Act, the Court held that the husband is having only an obligation to provide fair and reasonable maintenance to his divorced wife within the period of iddat and for the period of iddat only.  

A positive change of judicial attitude became evident from the decision of Gujarat High Court in A. A. Abdulla v. A. B. Mohmuna Saiyadbhai39 where the Hon‟ble High Court had recognised the right of a Muslim divorced woman to be maintained by her former husband beyond the period of iddat. The Court emphasized that the word “within” should not be construed narrowly to mean for or during, and held that the husband will have to contemplate the future needs of the wife and shall have to make such preparatory arrangement in advance for meeting the same within the period of iddat. Hon‟ble High Court of, Kerala in Ahmed v. Aysha40, observing that, even a millionaire wife who lives in luxury and affluence is entitled to claim maintenance from her former husband, had reiterated that there was no requirement of the wife being unable to maintain herself for granting maintenance or for payment of fair and reasonable provision as contemplated under Section 3 of the Act. While deciding Karim Abdul Rehman Sheikh v. Shehnaz Karim Sheikh and Ors41, Hon‟ble Bombay High Court, went a step further, broadening the scope of S.3 of the Act. Making a distinction between „provision‟ and „maintenance‟ the Hon‟ble Court held that, the term provision is having a future content and it shall come to denote an amount kept aside to meet a known liability, the amount of which cannot be decided with accuracy and in the context of Section 3(1) (a), it would therefore mean such amount as would be necessary for the divorced Muslim women to look after herself after the period of iddat. This may involve amount for her residence, food, clothing, medicine and like expenses. It was held that, these two expressions carried in with them distinct meanings because, if the legislature had intended to convey the same meaning they would not have employed two different expressions. Thus the Hon‟ble Court held that the husband is having the liability to make such reasonable and fair provision for her which should take care of her for the rest of her life or till she incurs any disability within the iddat period as provided under the Act. The Court also held that, till the husband makes the fair and reasonable provision the magistrate may direct monthly payment to be made to the wife even beyond the iddat period subject to the fixation of the amount of fair and reasonable provision.

4.2 INTERVENTION BY THE SUPREME COURT

The culmination of the judicial debate over the right of maintenance of Muslim divorcees was arrived at by the Hon‟ble Supreme Court in Danial Latifi v. UOI.42 In this case it was held that the right of a divorced Muslim woman to claim reasonable and fair provision and maintenance from her husband would extend to her whole life unless she gets married for a second time. Rejecting the narrow interpretation advanced by the Andhra Pradesh High Court in Usman Khan Bahamani v. Fathimunnisa Begum and ors.43, Hon‟ble Supreme Court asserted that, the term “within” occurring under Section 3 (1) (a) of the Muslim Women (Protection of Rights on Divorce) Act, shall come to mean on or before and not for or during. The Hon‟ble Court reiterated that the Section 3 of the Act emphasizes on the time by which the arrangement for payment of provision and maintenance should be concluded and not on the nature or duration of any such provision or maintenance. The Court also pointed out that if the legislature had intended to mean otherwise they would have put down it in black and white. Thus, it is implied that the husband is bound to make and pay maintenance to the wife on or before the expiration of the iddat period, and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3)44. Concurring with the view held by Bombay High Court in Karim Abdul Rehman Sheikh45 the Supreme Court held that, the word „provision‟ shall indicate something provided in advance for meeting some needs and that, at the time of divorce the husband is required to contemplate the future needs of the wife and make preparatory arrangements in advance for meeting their needs. Thus, the Hon‟ble Court contemplated that if the provisions of the Act are so read, only such a person would be excluded from liability for post-iddat period maintenance, who has already discharged his obligations of both reasonable and fair provision and maintenance by paying these amounts in a lump sum to his wife, in addition to having paid his wife‟s mahr and restored her dowry as per Section 3(1) (c) and 3(1) (d) of the Act.

Pointing out that, under S.4 of the Muslim Women (Protection of Rights on Divorce) Act, which empowers divorced women to claim maintenance from her various relatives contains no reference to “provision”, Hon‟ble Supreme Court, in Iqbal Bano v. State of UP and anr46 observed that, the right to have “a reasonable and fair provision” in her favour is a right enforceable only against the woman‟s former husband. Reiterating its former decision in Danial Latifi, the Hon‟ble Court held that, a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance and that, such a reasonable provision extending beyond the iddat period must be made by the husband within the iddat period in terms of S.3 (i) (a) of the Act.

In the light of the interpretations made under various decisions as discussed above it can be safely concluded that the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is providing a wider and more beneficial remedy than S. 125 of the Code, as it requires the husband to make a lump sum provision foreseeing the wife‟s future needs, devoid of the procedural difficulties and hindrances involved under the scheme of monthly payments under S.125. Taking into consideration this beneficial nature of Muslim Women (Protection of Rights on Divorce) Act and, the civil nature of S.125 of the Code, the Hon‟ble Court, in Iqbal Bano had held that, in a petition under S.125 of the Code involving a divorced Muslim woman, it will be open to the Court to treat it as a petition under the Muslim Women (Protection of Rights on Divorce) Act47. Here the Court was acting as a policy controller in granting discretion to the Courts in implementing the Muslim Women (Protection of Rights on Divorce) Act, in tune with the intention laid down under the Preamble of the Act.

Shabana Bano Vs Imran Khan

A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

Sayeed Khan Faujdar Khan vs Zaheba Begum

It may be noted that the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) came into operation on 29th May, 1986. The respondent moved application under Section 125 of the Code of Criminal Procedure in the year 1997. By the said application, the respondent claimed maintenance allowance of Rs. 500/- per month. The said application was withdrawn by the respondent by joint pursis dated 17th September, 1999 which shows that the respondent (wife) has received articles of Jahej as per the list submitted and also amount of Mehar of Rs. 15000/-. In view of the settlement, the respondent was not intertested in prosecuting the case for grant of maintenance. The respondent, however, moved application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) in the year 2001 for reasonable and fair provision of Rs. 250000/- and maintenance of Rs. 15000/- for Iddat period. In view of the joint pursis dated 17th July, 1999, the settlement arrived at between the petitioner (former husband) and the respondent (wife), which resulted in withdrawal of the application under Section 125 of the Code of Criminal Procedure created an estoppel against the respondent to move application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). The Courts below committed an error in entertaining and allowing the application of the respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). In the circumstances of the case, the respondent's application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is nothing but an abuse of the process of the Court which necessitates invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. The orders passed by both the Courts below are without jurisdiction and cannot be sustained.

Rehana Sultana Begum v. Hashmi Syed Mujib

The Bombay High court held that a divorced Muslim woman also entitled to maintenance till she gets remarried.

CONCLUSION

Under the traditional view under the Muslim law in India, as we could see, the divorced Muslim women were entitled to maintenance only during the period of Iddat. Under Shia, Sunni and Shafei schools, the women were entitled to get maintenance only where the talaq was revocable. Thus the Muslim women were literally pushed to a state of destitution on the event of their divorce. It was the deliberate intervention by the judiciary that had initiated a gradual transformation in their status. Krishna Iyer J, through his judgments in Bai Tahira and Fazlunbi, had pulled down the barriers of religion and opened the doors of S.125 of Cr.P.C to the Muslim women divorcees. The learned Judge had emphasised that, welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, this spirit of Art. 15(3) of the Constitution must belight the meaning of the Section.50 Qualifying S.125 Cr.P.C, as a provision of prophylactic nature cutting across the barriers of the religion, Hon‟ble Supreme Court, chaired by Chandrachud (CJ) in the controversial Shah Bano Case had concurred with the views held by Krishna Iyer J, in the former decisions. The Court had substantiated its view by quoting Aiyats 241 and 242 of the second Sura of Holy Quran. As we could see, this reference and the call for Uniform Civil Code had made the verdict a controversial one leading to huge uproar against the verdict from among the Muslim community. Though many writers consider Shah Bano case as a milestone, it had in fact become a millstone with respect to the rights of the Muslim divorcees owing to the fallacies in that judgment and had finally led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act of 1986.The Act had the effect of freezing all the benefits brought about by the judgments of the Supreme Court. But the proactive judiciary again came up in hands, for the cause of the Muslim divorcees. Various High Courts and later Hon‟ble Supreme Court in Daniel Latifi construed the provisions of the Act in such a manner as to impose a liability on the former husband, for providing the divorced wife with such reasonable and fair provision, sufficient enough to meet her future needs within the period of iddat as a lump sum amount. Through the decision in Shabana Bano case the Hon‟ble Supreme Court has again held the divorced Muslim women entitled to seek maintenance under S.125 of Cr.P.C.

Reading together the decisions in Iqbal Bano and Shabana Bano, we may conclude that a divorced Muslim woman may seek maintenance under Muslim Women (Protection of Rights on Divorce) Act, 1986 or under S.125 of the CrPC. The Court, in a petition under S.125 of the Code will be having the discretion to order the former husband to pay the maintenance on monthly basis till her remarriage or any other disqualification arises or may require the former husband to pay a lump sum amount contemplating the future needs of the wife, within the period of iddat as envisaged under the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Thus the Hon‟ble judiciary has successfully subserved as an invaluable instrumentality in upholding the gender justice in India by construing the existing laws to ensure that the divorced women are not pushed out into the walkways of vagrancy and destitution and thus upholding the spirit of Constitution.

The Supreme Court of India has always been a custodian of rights for all its citizens.

Through its land mark judgements, it has paved the way for social changes and its intentions for achieving this much needed changes are reflected in its judgements. But as always, the legislature always had an upper hand over judiciary and dirty politics stands as an obstruction in achieving this changes. Similarly when the protection of Muslim divorced wife came into limelight during the Shah Bano’s case, the noble intention of the apex court was reflected in its judgements, but than the congress government in power passed an act which nullified the apex court’s judgement and upheld the personnel law.

by

k. jagadeesh