HC adds 'life' to Muslim Divorce Act
Express News Service
The Indian Express
May 6, 1999
Title: HC adds 'life' to Muslim Divorce Act
Author: Express News Service
Publication: The Indian Express
Date: May 6, 1999
In a judgement expected to have a widespread effect on the rights of a
Muslim divorced woman towards claiming maintenance, the Bombay High
Court on Tuesday expanded the provisions of the 'iddat period
maintenance' under the Muslim Women's (Protection of Rights on
Divorce) Act, 1986 and held that a husband would have to make
provisions for entire life of the woman he was divorcing, within the
'iddat' period of three months after the divorce.
In doing so, the division bench of Justice A V Savant and Justice T K
Chandrashekhar Das has reinterpreted the provisions of Section 3(1)
(A) of the Act which provides that a "fair and reasonable provision
for maintenance for the woman would have to be made within the iddat
period of three months after the divorce." The section was being
interpreted by the lower courts as one where a husband would have to
provide maintenance for only three lunar months - ie the 'iddat'
period - after divorce.
With this decision, a Muslim woman, who otherwise would have to depend
on Section 125 of the Criminal Procedure Code (CrPC) which provides
for a maximum of Rs 500 as a monthly maintenance for fife, would now
be able to obtain a lumpsum amount as a settlement.
In fact the Gujarat and the Kerala High Court had way back in 1988
held that Section 3(1) (A) provided that the husband make provisions
for a life-time settlement with the wife.
The division bench of justice Savant and Justice Das passed the
landmark judgement in a case fled by Jaitunbi Sheikh who moved the
Bombay High Court after her husband, Fakhruddin Mubarak Sheikh refused
to pay the maintenance since the 'iddat period' was over. For
Jaitunbi, it took a long nine years to achieve this victory.
Jaitunbi, a resident of Sonwadi at Phalton in Satara district,
received the news of her divorce through a letter written by her
husband on October 29, 1986 along with a money order of Rs 125 as her
meher, which she refused. She then challenged the divorce and the
Court of the Judicial First Magistrate granted her a monthly sum of Rs
300 from her husband.
Her husband then appealed against the order in the sessions court
claming that since he had divorced her under the Muslim Women's Act,
she had no claim to a maintenance. He also argued that since he had
written a letter as well as sent a notice through his lawyer on
November 10, 1987 about his divorce, she could not ask for any
maintenance amount after this date. The sessions court accepted his
argument and considering the provisions of Section 125 of the CrPC as
well as the under the Muslim Women's Act, held that Jaitunbi could
have no claim towards any maintenance. Following this, the woman moved
the Bombay High Court.
In their judgement, the division bench of Justice Savant and Justice
Das took into consideration almost all the developments regarding the
Muslim divorced women's rights till date. These include the Muslim
Personal Law, the rights of divorced women and the pathbreaking
verdict of the Shah Bano case. In fact, it was a Congress Government
led by Rajiv Gandhi which in 1986 shaken by the pathbreaking Shah Bano
case verdict delivered by the Supreme Court formulated the Muslim
Women's Protection Act where all the issues of maintenance dovetailed
at section 3 (1) of the Act.
In t his case, the Bombay High Court has also directed that the
Judicial First Magistrate of Phalton will decide the issue of the
settlement by December this year.
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