The Muslim Women (Protection of Rights on Divorce) Act, 1986, virtually nullifies the relevant Supreme Court decision in Shah Bano’s case (1985 Cr.L.J. 875 S.C.). The Act is against the provisions of the Constitution. Part IV of the Constitution containing the Directive Principles of State Policy envisages in Article 44 that the State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India.
The preamble of the Constitution ensures to the people of India a sovereign secular democratic republic, and in accordance with the preamble coupled with the goal of secularism envisaged in the Constitution of India, the State must stop administering religion based personal laws.
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Section 3 of the Act provides: (1) Notwithstanding anything contained in any other law for the time being in force, a divorced Muslim woman shall be entitled to:
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage according to Muslim law; and
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(d) All the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or anyone duly authorized by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance for her and the children, or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that—
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provisions and maintenance for her and the children; or
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(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her : make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman, as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman :
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.
Section 4 of the Act provides : (1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods ‘as he may specify in his order :
Provided that if any such relative is unable to pay his or her share of the maintenance ordered by the Magistrate on the grounds of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportion as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or anyone of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives, whose shares have been ordered by the Magistrate to be paid by such other relatives under the proviso to sub-section (1), the Magistrate may, by order, direct the State Wahf Board established under Section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.
Every application by a divorced woman under Section 125 or under Section 127 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 the new Act.
The present enactment takes away the right of a divorced Muslim woman to maintenance from the purview of the essentially anti-vagrancy provision of Section 125 of the Criminal Procedure Code. The burden of maintenance is shifted under the Act to her parents or brothers or sisters as provided in the Muslim law in the first instance and failing that to the Wakf Board.
The burden is to be thrust on relatives to look after the abandoned woman according to the share of her property they stand to inherit. It is a retrograde, discriminatory and ill conceived enactment. It is therefore a very tardy step to alleviate the sufferings of Muslim women who are divorced by the husband in exercise of his absolute powers conferred on him by law without any reason at bis whim or caprice.
It tends to cause a breach even with regard to uniform applicability of criminal law. It has deprived Muslim women of the right conferred on them by the provisions of Section 125 of the Code of Criminal Procedure and the judgment in the Shah Bano’s case. Muslim women will thus be relegated to the background and all their hopes and aspirations for their emancipation from the bondage of menfolk and will get a deep burial. The protection envisaged in the enactment is an impracticable hoax. It will alienate the divorced Muslim woman from the rest of the Indian people.
The present Act has been challenged in the Supreme Court.
The Gujarat High Court has however in Arab Ahmadliia Abdullah & etc. v. Mohamuna Salyadhai and others (A.I.R. 1988 Gujarat, 159) interpreted the controversial clause (a) of sub-section (1) of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, under which the divorced woman is entitled to “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband by holding that such provision and maintenance to be made and paid within the iddat period is not confined to during the iddat period.
The limitation in Section 125 of the Criminal Procedure Code that maintenance up to Rs. 500 is to be paid is not there in this provision. Something more is given to the Muslim divorced woman and her rights are fully provided.
The prerequisite condition for application of Section 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is that an application under Sections 125 and 127, Cr.P.C. must be pending before the Magistrate on the commencement of the Act of 1986. The Act of 1986 and the provisions thereof would cover only the case filed after the new Act came into force and those cases under Sections 125 and 127 which were pending.
If any retrospective effect would be given to the Act of 1986, it would result in serious complications. The legislature in its wisdom never contemplated a situation where divorced Muslim women would not be given benefit which they had already acquired under the law which was in force earlier and which had been implemented under Sections 125 and 127, Cr.P.C. and became final.
Even the High Court in revision, if it is pending on the date of commencement of the new Act, cannot deprive Muslim women of their rights of maintenance under Ss. 125 and 127, Cr.P.C. which had been allowed by the Magistrate earlier and which had become final to that extent. A Muslim divorced women or her husband cannot move before a Magistrate for cancellation of the order of maintenance already granted simply on the ground that the new Act of 1986 has come into force.
(Idris ALi v. Ramesh Khatun, A.I.R. 1989 Gauhati 24).