Does Law Really Protect? : A Slap on Indian Democracy Muslim Women (Protection of Rights on Divorce) Act, 1986: A Critical Legal Study

Article for Blog Post Writing Competition 2011 | by Shubham Shrivastava


June 6th, 201111:27 pm


At First the Question which needs an answer is, as to why have I selected this particular topic for study?

The answer to the question being very simple but very painful forces a special mention of the Preamble of Muslim Women (Protection of Rights on Divorce) Act, 1986 which says it to be “An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto”

In the statement of object and reasons the Bill lays down that the decision in Mohammad Ahmed Khan V. Shah Bano Begum led to some controversy as to the obligation of Muslim Husband to pay the maintenance to the divorced wife, therefore, an opportunity has been taken to specify the rights which the Muslim women is entitled to at the time of divorce and to protect her interest.

But is it really so? Does this child of Legislature protect the rights of Muslim Women in real sense? Is it anymore obligatory on the part of husband to maintain his divorced wife?

A single overview will relieve the true position of the Act. In fact this Act has been passed in order to override the decision of Apex Court in Mohammad Ahmed Khan V. Shah Bano Begum in which it was laid down by the court that, the divorced Muslim women would be entitled to claim maintenance from her husband as long as she remained unmarried and was unable to maintain herself.

Section 3(1) of the Act lays down that “Notwithstanding anything contained in any other law for the time being in force, a divorced 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 her 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)..”

The use of the word “within” under section 3(1) (a) of the Act leads to the construction that a women is entitled to maintenance by her husband only for the iddat period and after that he is discharged of the liability to maintain his wife no matter whether she is able to maintain herself or not. In other words the use of the term ‘within iddat period’ specifies the time within which maintenance is to be given to a women as opposed to the proviso to section 4 of the Act which provides ‘the period for which the maintenance is payable by the husband’. Thus the provisions of section 4 and section 3 are contradictory to each other.

It appears that the Parliament has enacted the Law in such a hurry to bypass the judgment of the Apex Court which was so much in tune with the progressive thinking and social justice that it failed to notice such a grave conflict in a small Act consisting of just 7 sections.

Furthermore, if we subscribe to the Code of Criminal Procedure, 1973, the Code is saved only to the extent of enforcing the liability of the husband in the manner provided therein. But, the part of the Code, which determines the right of the divorced wife to claim maintenance from her husband, is eclipsed by Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 as it says “Notwithstanding anything contained in any other law for the time being in force…….” Therefore, this Act illustrates Legislative Supremacy over Judiciary.

If the error in the use of the phrase within the iddat period is discarded to bring it in tune with Section 4 of the Act, it means that a husband is liable to maintain his divorced wife, only for iddat period.

Under section 2(b) of the Act, the term iddat has been defined. It appears that conferment on the Parliament, of rights and duties under Article 29 and 38 respectively has jettisoned social justice and committed injustice on the electorate at large in limiting the husband’s liability to maintain his divorced wife during iddat period in the guise of sorting out “some controversy” created by Shah Bano Begum Case.

There is no reason in linking the maintenance period to the period of iddat for a divorced women who is not able to maintain herself, who is, probably, illiterate and is not equipped with the potential to make two ends meet, what does it matter whether she is subject to menstrual courses or has reached a menopause.

It is also worth mentioning that under Section 3(1)(b) of the Act when the divorced women herself maintains the children born to her out of their wedlock, she is entitled to reasonable maintenance for a period of two years from the respective dates of birth of such children. Thus, if the child, for example, is 1 year 6 months old, at the time of divorce then she is entitled to claim maintenance for 6 more months and if the child is of 3 years of age, then the husband is absolved of his responsibility towards the child born to him, under this Act. Such a provision is not a sign of healthy society.

Furthermore, mockery of law is to be found under Section 4(1) of the Act, wherein it is provided that if the divorced women has not remarried and is unable to maintain herself after the iddat period, the magistrate may direct such of her relatives as would be entitled to inherit her property on her death, to pay such reasonable and fair maintenance to her… having regard to the standard of life enjoyed by her during her marriage and the means of those relatives.

However According to Mullah, “chance of an heir apparent succeeding to an estate cannot be the subject of valid transfer or release”. It is mere spes successionis i.e. an expectancy of an heir to succeed to an estate. There is no certainty as to who will inherit the property, as there is no certainty as to who will die first or who will succeed the divorced women.

According to Section 4(2) of the Act, if the divorced woman has no relatives or if they do not have enough means to pay the maintenance, the Magistrate may direct the State Wakf Board to pay maintenance to the divorced woman.

Thus, the divorced woman, who is not remarried and is unable to maintain after the period of iddat is left to be tossed from on relative to another until she reaches the doors of charity under the Wakf Act, 1995. This provision itself distorts the concept of ‘right’ and leads in particular to an unending process of litigation.

What the worst is that under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 there is an option to be governed by the provisions of this Act or by the proviso to sections 125 to 128 of the Code of Criminal Procedure, 1973. It is submitted that the husband would never opt for the second choice unless he is an eccentric or a fool and consequently wife would not go for the first choice, thus it would again lead to a conflict between the two parties.

Such provisions are no signs of a healthy society, where the women folk constituting a considerable chunk of the society, living continuously under a fear of being divorced at any time on fancy grounds by their husbands with no proper provision for subsequent maintenance, is nothing but a big slap on the face of Indian Constitution, it is submitted that the Preamble of the Constitution of India, which secures social and economic justice to its citizens does not require dictionary meaning, rather it is to be translated and find a place in day-to-day life of its citizens.

This action of government will go down in history as the most unjust act done by the elected Government of the world’s largest democracy. After having spent so many years together, after having compromised on so many issues, after sacrificing her nights and days to make his home a family, she is practically given a zero value.

Before concluding I would like to draw the kind attention of the political leaders that if the government is really interested in protecting the rights of Indian women then why no step is being taken towards amending the offending provisions of the small Act of just 7 sections? It appears unjust, that even after 25 years of the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986 no serious steps are being taken towards the protection of a delicate portion of the society. A single overview of the above Act will definitely lead a person of common prudence to conclude that the Act is to protect ‘Men’ instead of ‘Women’.

This is high time to translate the very goal of the Indian Constitution into reality and to protect Indian Women from the shackles of injustices done to her since inception.

Article by –

Shubham Shrivastava

Student LL.B. (Honors) 4th Semester

University of Lucknow, Lucknow (U.P.)

[Submitted as an entry for the MightyLaws.in Blog Post Writing

Competition, 2011]

 

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