Law
vision
Muslim
women's right to maintenance in India
Saumya
Uma
The
erstwhile Rajiv Gandhi government enacted the Muslim Women
(Protection of Rights on Divorce Act), 1986 to neutralise
the effects of the Shah Bano judgement of the Supreme
Court (Mohamed Ahmed Khan vs Shah Bano Begum, 1985). In
that judgement, the apex court stated that Muslim women
could claim life-long post-divorce maintenance under secular
law S. 125, Criminal Procedure Code. The 1986 Act, rather
than protecting, ironically sought to restrict Muslim
women's right to post-divorce maintenance to three months
after divorce. This was a clear case of the government
succumbing to conservative and patriarchal forces from
the Muslim community, thereby violating principles of
justice and equality for women.
Judicial
responses to post-divorce maintenance of women
A product
of hasty drafting, one provision of the Act - Section
3 (1) - provides that a divorced woman shall be entitled
to have from her husband, "a reasonable and fair
provision and maintenance" which is to be made and
paid to her within the iddat period. An issue that has
come up before the courts time and again is the interpretation
of the term "reasonable and fair provision".
Some courts, such as Kerala, Gujarat and Maharashtra,
had interpreted the term in a broad manner and stated
that this should include maintenance for the woman's future
extending beyond the iddat period. However, other states,
such as Orissa, had interpreted the term to be maintenance
for and during the period of iddat alone. For several
years, the fate of Muslim women's post-divorce maintenance
depended on the varying standpoints taken by each High
Court.
This
inconsistency has been put to rest by a Full Bench of
the Supreme Court in Daniel Latifi vs Union of India,
2001. This judgement affirmed the beneficial interpretation
adopted by the Bombay High Court and other courts, and
confirmed that the clause "reasonable and fair provision"
meant life-long post-divorce maintenance to be paid by
the husband within the iddat period. It further said that
this was a right of a lump sum provision to be made and
paid to the woman soon after her divorce.
The
Kerala High Court, through a judgement passed in November
2004 in Abdul Hammed vs Fousiya, has gone a step further
and clarified that a Muslim woman would be entitled to
post-divorce maintenance from her former husband even
if she had remarried after the divorce. It granted the
woman maintenance from the date of divorce to the date
of remarriage, and stated that remarriage will not justify
the former husband from withholding the benefits payable
to the wife. Section 125 of the Criminal Procedure Code
stipulates that maintenance can be claimed only by a woman
who has not remarried after divorce. This archaic provision
essentially ensures an ex-husband's control over the woman
and her sexuality, even after her divorce, and has no
place in modern jurisprudence. Fortunately, there is no
such stipulation in the 1986 Act an omission possibly
due to hasty drafting!
Constitutional
validity of the 1986 Act
The 1986 Act has met with severe criticisms from women's
organisations, human rights groups and secular humanists
since the time of its enactment. Some such criticisms
include:
*The Act discriminates against Muslim women solely on
the basis of religion, thereby violating the guarantee
of equality and non-discrimination on the grounds of sex
and religion, set out in Articles 14 & 15 of the Indian
Constitution.
*The Act is impractical in its expectation that parents,
brothers and other relatives will shoulder the responsibility
for a divorced woman's and her children's maintenance;
*The expectation that a divorced woman will sue her parents/other
relatives to obtain maintenance is unrealistic;
*The right of Muslim women to seek maintenance from Wakf
Boards is illusory, as many State Wakf Boards are either
disfunct or non-existent.
*A provision in the Act that gives the option of applying
for maintenance under S. 125 Cr. PC if both parties agree
is pointless as few husbands would give the requisite
consent.
In
Danial Latifi's case, the constitutional validity of the
1986 Act was challenged. It is interesting to note some
of the arguments put forth by advocates representing various
players in this process. The advocates for the petitioner
argued that the Act was un-Islamic, unconstitutional and
it has the potential of suffocating the Muslim women.
The Solicitor General supported the Act by stating that
personal law was a legitimate basis for discrimination,
and that therefore it does not offend Article 14 of the
Constitution. The All India Muslim Personal Law Board,
as an intervener, defended the 1986 Act and stated that
Section 4 of the 1986 Act (maintenance from family, relatives
& State Wakf Boards) was good enough to take care
of avoiding vagrancy of a divorced woman, and that she
need not be dependent on her husband. The Islamic Shariat
Board defended the Act by arguing that the 1986 Act was
enacted to nullify the erroneous judgement in Shah Bano's
case and to bring it in line with Muslim personal law.
The National Commission for Women submitted that the court
should adopt a broad interpretation of 'reasonable and
fair maintenance', failing which Constitutional guarantees
maybe violated.
The
Supreme Court said that the provisions of the 1986 Act
were a fair substitute to S. 125 Cr.P.C. as both the laws
sought to prevent vagrancy by compelling those who are
under an obligation to support those who are unable to
support themselves and that such an object was being fulfilled.
On this ground, the court upheld the Constitutional validity
of the Act.
The
Daniel Latifi case is significant for bringing the whole
question of alimony within the right to life under Article
21 of the Constitution, which it emphasised, included
the right to live with dignity. Earlier, Indian courts
have been reluctant to test aspects of matrimonial law
against the cornerstone of constitutional principles of
equality, non-discrimination and right to life. The broader
implications of the judgement are the potential it holds
for affirmation of the centrality of constitutional values,
vis-à-vis discriminatory aspects of matrimonial
laws.
Obstacles
to accessing justice
The All India Muslim Personal Law Board continues to propagate
the view that a man should pay maintenance only till the
iddat period; conservatives have popularised the belief
among community women and men that it would be sin (haraam)
for the woman to claim maintenance from her former husband
after the expiry of the iddat period, as by then, they
would be strangers to each other. In reality, this, in
itself, discourages many women from asserting their right
to post-divorce maintenance rights. A lack of awareness,
poverty, illiteracy, financial implications of litigation
and community opposition against claiming post-divorce
maintenance cause further obstacles to Muslim women accessing
justice. This reinforces the fact that for progressive
judgements by courts of law to have considerable impact,
it is imperative that legal exercises are complemented
by outreach, awareness raising and empowerment of Muslim
women at the community level.
The
author is a women's rights advocate and Co-Director of
Women's Research & Action Group (WRAG), Mumbai.
