By Audrey D’mello
The recent Times of India Campaign on Gender Equality in Law had a poster which appeared in TOI on June 20, 2015. The poster stated
“under the Muslim law enacted in the wake of the Shah Bano case, the divorced muslim woman is entitled only to a settlement within the Iddat period of three months! For anything beyond that, she will have to depend on relatives or charity.”
THIS IS INCORRECT INFORMATION ABOUT RIGHTS OF MUSLIM WOMEN
The law they mention is called the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA). Section 3 of the Act states that a divorced woman shall be entitled to the following from her husband – maintenance during iddat period, a fair and reasonable settlement for her future, maintenance for the children till they are adults, return of her meher and belongings. If the husband fails to make such settlement, a divorced Muslim woman has the right to approach the court for enforcement of her rights.
Since 1988, various High Courts have held that a divorced Muslim woman has a right of ‘fair and reasonable settlement’ in addition to maintenance for three months.
Fair and reasonable provision for future (mataaoon bil ma’aroofe) is a Quaranic injunction.
In 2001, the constitutional bench ( five judges of the Supreme Court) landmark judgement Daniel Latifi vs Union of India, confirmed that the MWA has substituted the earlier right of recurrent maintenance under S.125 Cr.PC with a new right of a lump sum provision to be made and paid to the woman soon after her divorce.
But since the media has not highlighted these positive milestones, the perception that a Muslim husband has no economic obligation towards his divorced wife beyond three months after divorce, still persists.
This right is far superior to the Hindu woman’s right of recurring maintenance every month which is subject to the rider of sexual purity.
The legal provisions governing the rights of Hindu, Muslim, Christian and Parsi women are constantly abused and throttled by men, usurping their patriarchal authority and power positions. But when this is done to Muslim women a popular misconception prevails that such abuse is sanctioned by both law and scriptures.
It is imperative to correctly assess the position of Muslim woman under the contemporary legal provisions before embarking on the debate on the lacunae in Islamic jurisprudence in India.
The photograph of Shahbano is used inspite of the fact that this judgement was passed thirty years ago. Much water has flown under the bridge since then including the constitutional bench judgement that enhanced the rights of Muslim Women. Below is a summary of the Danial Latifi Judgement.
Danial Latifi v Union of India [2001 (7) SCC 740: 2001 Cri.LJ 4660] Supreme Court
In interpreting the provisions where matrimonial relationships are involved, we have to consider the social conditions prevalent in our society. Whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated, both economically and socially, and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs. Very often, a woman, in her marriage, though highly educated, gives up all her other avocations and entirely devotes herself to the welfare of the family. In particular, she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life – a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognized by persons belonging to all religions and it is difficult to perceive that Muslim Law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity, and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or nationals, sectarian, racial or communal constraints.
Though the purpose of the Act seems to allow the Muslim husband to retain his freedom of avoiding payment of maintenance, a careful reading of the Act indicates that a divorced woman is entitled to a reasonable and fair provision for maintenance. It seems that the Parliament intended that the divorced woman get sufficient means of livelihood after the divorce and accordingly inserted the word ‘provision’, which indicates something provided in advance for meeting some needs. In this light, the Court held that at the time of the divorce, the Muslim husband is required to contemplate the future needs of the wife and make preparatory arrangements in advance to meeting those needs. Reasonable and fair provision would include provision for her residence, food, clothes, and other articles. The Act would mean that even though the husband was bound to pay maintenance on or before the expiration of the Iddat period, but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only to the iddat period and not beyond it. This could therefore extend to the whole life of the divorced wife unless she remarries.
The wordings of section 3 of the said enactment seem to indicate that the husband has two separate and distinct obligations – (1) to make reasonable and fair provisions for his wife and (2) to provide ‘maintenance’ for her. Both must be fulfilled within the Iddat period. In light of this interpretation, it would appear that the Act excludes the man from liability for post-iddat period maintenance if he 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 the wife’s mehr and dowry.
Such an approach was substantiated by the fact that S.3 (1)(a) provides for ‘a reasonable and fair provision and maintenance to be made and paid’. By employing two different verbs, the expression covers two different things, namely, a fair and reasonable provision to be made while maintenance is to be paid. Further, S.4 interestingly contains no reference to ‘provision’ and accordingly, the right to have ‘a fair and reasonable provision’ is a right enforceable only against the former husband, which is in addition to what he is obliged to pay as ‘maintenance’. This stance is fortified by the Holy Quran, which uses the word ‘mata’ which has been translated to mean ‘provision’. Such a construction supports the view that the word ‘provision’ in S. 3(1)(a) incorporates ‘mata’ which is a right of the divorced Muslim woman distinct from and in addition to mehr and maintenance for the iddat period. The term ‘a reasonable and fair provision’ should be understood with reference to the needs of the divorced woman, the means of the husband, and the standard of living the woman enjoyed during the marriage. The Court further opined that such a provision could even take the form of a regular payment of alimony to the divorced wife.
In drawing out such an interpretation, the Court admitted that it may look ironical that the enactment intended to reverse the decision in Shah Bano, in actuality codifies the rationale contained therein. The Act thus satisfies the object of S.125 Cr.PC i.e., to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves. Moreover, under the settled rule of construction, if on a given interpretation a statute will become unconstitutional and whereas on another construction it remains effective, the Court would prefer the latter on the ground that the legislature did not intend to enact unconstitutional laws.
The position is summed up as:
1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes maintenance. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period.
2) Liability of the Muslim husband to the divorced wife to pay maintenance under the Act is not confined to the iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under S.4 of the Act against her relatives. If any of the relatives are unable to pay maintenance, the State Wakf Board could be called upon to pay the same.
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Audrey D’mello is the Programme Director with Majlis Legal Centre, Mumbai.
Related Link:
No uniform policy of Waqf boards on Muslim widow pension