The Mumbai High Court ruling in early May that a Muslim male is liable to provide for his divorced wife beyond the iddat period, revives the over decade–old controversy
Shah Bano died over a dozen years ago. But the issue that she raised and which made her a housej
hold name in India — a divorced Muslim woman’s right to maintenance from her former husband — refuses to fade away. It’s now 13 years since the then Prime Minister, Rajiv Gandhi, buckled under the pressure of Muslim men to enact a special law for Muslim women — Muslim Women (Protection of Rights on Divorce) Act, 1986. The new Act gave the impression to most Muslims and even others that through their countrywide agitation they had successfully established the ‘Islamic’ principle that since marriage is only a civil contract, once a Muslim male divorces his wife, he is not liable to pay her any maintenance beyond the three–month iddat period.
To begin with, several petitions filed by secular individuals and groups challenging the very constitutional validity of the 1986 act are pending before the Supreme Court. Secondly, divorced Muslim women with nowhere else to turn to, despite the pious promises of the orthodoxy, have continued to plead for justice from the courts. In the last few years, some high courts have interpreted the same 1986 law to mean that the former husband is obliged to provide for his divorced wife beyond the iddat period. The latest such ruling to refocus attention on the issue has been the verdict of a division bench of Mumbai High Court delivered in early May.
Zaitunbi Mubarak Shaikh of Satara district in Maharashtra was deserted by her husband, Mubarak Fakhruddin Shaikh, in 1980. In response to an application filed by her under Section 125 CrPC, the local magistrate ruled in June 1981 that her husband pay her Rs.60 per month for maintenance. Then on October 6, 1986, Zaitunbi filed an application for enhancement of the maintenance sum to Rs.500 p.m. She prayed that she had not been keeping good health and the amount of Rs.60 was not even enough to pay for her medical bills and also that her husband who had a stable job could easily afford the enhanced amount.
Unfortunately for Zaitunbi, the Muslim Women’s Act, had been passed six months before her application. Taking recourse to the same, Mubarak informed the court on November 11, 1986 that he had divorced his wife (by registered post!) on October 29 (that is, 23 days after his deserted wife’s application), paid her the mehr amount of Rs.125 and Rs.150 towards maintenance for the iddat period. And so, according to the new Act, he was not obliged to pay any further maintenance. The petition came before the division bench after the sessions court, Satara, had ruled in Mubarak’s favour.
Section 3 (1) of the Muslim Women’s Act says 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) an amount equal to the sum of mehr or dower amount agreed to be paid to her at the time of her marriage according to Muslim law; and
d) all the properties given to her before or at the time of her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
It is the first of these clauses pertaining to "reasonable and fair provision and maintenance" which has tended to be interpreted differently by different high courts in the country.
The very first judgement under the amended Act was given by the Lucknow magistrate, Ms. Rekha Dixit. She awarded Rs. 68,000 to a divorced Muslim wife in a final settlement of all dues. In more recent years, the Gujarat, Kerala and now Mumbai high courts have interpreted the clause to mean the wife is entitled to payment from her former husband even beyond the iddat period. On the other hand, by a majority of two to one, a full bench of the Andhra Pradesh high court has ruled that the Act does not envisage any payment of maintenance beyond the iddat period.
Having looked up the separate dictionary meanings of the words provision and maintenance, Justices A.V. Savant and T.K. Chandrashekhara Das of the Mumbai high court have concluded that while passing the new law, the legislative intent — an important consideration while interpreting any law — was to provide for a woman beyond the iddat period.
Clearly, the ball now lies with the Supreme Court of India. For now, women’s organisations and other secular groups have welcomed the Mumbai court’s ruling, but there is some apprehension whether the basis on which the judges have arrived at their ruling — intention of the legislature while framing the law — will stand scrutiny in the Supreme Court. After all, wasn’t the frenzy of the Muslim clergy the political backdrop to appease whom Rajiv Gandhi piloted the new bill? On the other hand, stands a ruling of the Dacca high court of 1995, which argues entirely within the confines of Islam that the Quran very clearly enjoins upon Muslims to pay maintenance to their divorced wives until such time as they remarry. (See accompanying excerpts). In most other Muslim majority countries today, the former husband is obliged to pay maintenance to the former wife for different lengths of time beyond the iddat period. The Muslim male in India, in other words, demands privileges from secular India which are denied to his counterparts even in most states that claim to be run according to Islamic principles.
Archived from Communalism Combat, June 1999. Year 6 No. 54, Special Report