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Law Reporter
The Times of India
May 7, 1999
Title: Ruling on Muslim divorce welcomed Author: Law Reporter Publication: The Times of India Date: May 7, 1999 Lawyers and activists have welcomed the ruling of a division bench of the Bombay high court on Tuesday which says that a Muslim divorcing his wife would have to make fair and reasonable provisions for her entire life within three months of the divorce. The lawyers and activists say it supports the forward-looking precedents from the Gujarat and Kerala high courts. With this judgment, a Muslim woman, who would otherwise have to depend upon section 125 of the Criminal Procedure Code (CrPC) which provides for a maximum of Rs 500 as a monthly maintenance for life, would now be able to obtain a lump sum amount as settlement. The division bench of Justice A.V. Sawant and Justice T.K. Chandrashekar Das passed this judgment in a case filed by Jaitunbi Shaikh of Satara, who moved the high court after her husband refused to pay the maintenance beyond the three- month 'iddat' period, after which the divorce is finalised, ended on November 11, 1987. This judgment seeks to clarify section 3 (1) (A) of the Muslim Women's (protection of rights on divorce) Act of 1986 which provides that "a fair and reasonable provision for maintenance for the woman has to be made within the iddat period." According to Jaitunbi's lawer Kisan Sonwalkar, this section was being interpreted by the lower courts as one where a husband would have to provide maintenance only till the three months of the iddat period. Activists say that several high courts had interpreted section 3 (1)(a) of the Act in different ways, with confusing results. The Andhra Pradesh high court had taken the section to mean that divorced Muslim women should be paid maintenance for the iddat period. However, the Gujarat and Kerala high courts said that the Act called for a reasonable provision for the woman's future which should be paid within the iddat period. Ammu Abraham of the Women's Centre said, "The Bombay high court is not saying anything new. It has merely supported the earlier high court rulings. But it is an encouraging ruling. The term 'reasonable provision' is open to interpretation and could even lead to a substantial settlement." Islamic scholar Ashgar Ali Engineer said the ruling would lend greater clarity to the Act. "A number of cases are pending in court because it was unclear whether the courts should proceed according to the Muslim Divorce Act or the Criminal Procedure Code which provides for a monthly payment of Rs 500 for destitute women," he said. Veena Poonacha from SNDT's research centre for women's studies said the ruling was forward looking. She pointed out that the concept of a lump sum maintenance payment was welcome since it was difficult for the majority of women to get their ex-husbands to honour monthly maintenance payments. "In fact, the ruling might place Muslim women in a better position than Hindu or Christian women who do not get a lump sum payment which can yield monthly interest," says advocate Mihir Desai, director of the India Centre for Human Rights and Law. Jaintunbi, a resident of Sonwadi at Phalton in Satara district, learnt of her divorce through a letter written by her husband on October 26, 1986. The letter also had a money order of Rs 125 as 'meher' (dower), which she refused. She then challenged the divorce in the judicial magistrate first class who granted her a monthly sum of Rs 300 as maintenance. Her husband, an employee of the Baramati municipal council, challenged the order in the sessions court, claiming 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 to his lawyer on November 10, 1987, about his divorce, she could not demand any maintenance after this date. The sessions court accepted his argument and considering the provision of Section 125 of the CrPC as well as under the Muslim Women's Act, held that Jaitunbi could have no claims towards any maintenance beyond what has been already been given to her. She then moved the Bombay high court.
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