archive: Ruling on Muslim divorce welcomed
Ruling on Muslim divorce welcomed
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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