Frontline
June 1999
Special Report

Wages of divorce 

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 house
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.

JAVED ANAND

 


 

Excerpts from a ruling of the Dacca High Court delivered in 1995 (Justice Mohammed Gholam Rabbani and Justice  Syed  Amirul Islam) upholding a divorced Muslim woman’s right to maintenance until such time as she remarries:

(We) address ourselves to a suo moto legal query as  to whether the first opposite party (divorced wife) could have claimed maintenance beyond the period of iddat. The relevant materials are as hereunder: "For divorced women maintenance (should be provided) on a  reasonable (scale). This is a duty on the righteous. Thus doth God make clear His Signs to you, in order  that  ye may understand". (Quran, second Sura Baqara, verses 240–242).

…In fifty–fourth Sura Qumar, God repeats four times, the same verse: "And we have made the Quran easy to understand and remember: then is there any that will receive admonition?"Article 8 (1A) of the Constitution of Bangladesh, contained in Part II under the heading "Fundamental Principles of State Policy", states that absolute trust and faith in the Almighty Allah shall be the basis of all actions. It indicates that Quranic injunctions shall have to be followed strictly and without any deviation.

The Quran urges: "Those to whom we have sent the Book, study (it) as it should be studied; they are the ones that believe therein." (Second Sura Baqara, verse 121.) This verse directs continuous study of the Quran which is in conformity with the dynamic, progressive and universal character of Islam.

…We now like to quote an observation from a decision of the Lahore High Court reported in PLD 1960 Lahore 1142 (Rashida Begum V. Shahan Din & others) in support of our above views as hereunder:

"Thus it is quite clear that reading and understanding the Quran is not the privilege or the right of one individual or two. It is revealed in easy and understandable language so that all Muslims, if they try, may be able to understand and act upon it. It is thus a privilege granted to every Muslim which cannot be taken away from him by anybody, however highly placed or learned he may be, to read and interpret the Quran.

"If the interpretation of the Holy Quran by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject, then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. It will then cease to be a universal religion and will remain a religion confined to the time and place when and where it was revealed".

…We, thus, come to the conclusion that a civil court has the jurisdiction to follow the law as in the Quran disregarding any other law on the subject, if contrary thereto, even though laid down by the earlier jurists or commentators, may be of great antiquity and high authority, and though followed for a considerable period.

Under the Hindu Law clear proof of usage can out–weigh the written text of law. But it is not in the case of Islamic law. For it is an article of faith of a Muslim that he should follow without questioning what has been revealed in Quran and disobedience thereof is a sin.

Now let us consider the literal meaning of the first part of verse no. 241 of Sura Baqara as quoted above….So we find that a woman who is divorced is entitled to house–hold stuff, utensils, goods, chattels, provision, convenience which is known, recognised, honourable, good, befitting, a kindness. Abdulla Yusuf Ali is, therefore, correct in translating the expression "mataaoon bil maaroof" as, "maintenance should be provided on a reasonable scale".

Considering all the aspects, we finally hold that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat for an indefinite period, that is to say, till she loses the status of a divorcee by remarrying another person.

(See CC, March 1997, for the full text of the above ruling).


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