Author: Times News Network
Publication: The Times of India
Date: September 30, 2001
A large section of the Muslim community
which is seeking equality with other communities on the issue of maintenance
has suffered a setback with the supreme court ruling that a divorced Muslim
woman could not invoke the criminal law for alimony.
A constitution bench, however, upheld
the validity of the Muslim Women (Protection of Rights on Divorce) Act
and said a Muslim husband is liable to make provision for the future of
the divorced wife, including her maintenance.
"A Muslim husband is liable to make
reasonable and fair provision for the future of the divorced wife, which
obviously includes her maintenance as well," a bench comprising Justice
G. B. Pattanaik, Justice S. Rajendra Babu, Justice D. P. Mohapatra, Justice
D. Raju and Justice S.Y Patil said.
It dismissed a batch of writ petitions
challenging the validity of the Act, which the Rajiv Gandhi government
had enacted in the aftermath of the famous Shah Bano case judgment in 1985,
restricting a Muslim husband's liability to provide for maintenance to
his divorced wife to the period of 'iddat'.
Period of 'iddat' envisages three
menstrual cycles after the divorce, if the woman is subject to mensuration;
three lunar months after the divorce, if she is not subject to mensuration;
and if she is enceinte at the time of her divorce, the period between the
divorce and the delivery of her child or the termination of her pregnancy
whichever is earlier.
The bench said, "Such a reasonable
and fair provision extending beyond the 'iddat' period must be made by
the husband within the 'iddat' period in terms of section 3(1)(a) of the
Act."
The bench said that if a woman chooses
to remain unmarried after divorce and finds herself in a difficult situation,
she could move for maintenance as per Muslim Law of inheritance against
those relatives, including her children and parents, who were to inherit
her property after her death as provided under section 4 of the Act. "If
any of the relatives is unable to pay maintenance, the magistrate may direct
the state wakf board established under the Act to pay such maintenance,"
the court added.
The principal question before the
court was the interpretation of section 127(3)(b) of the CrPC, that is,
where a Muslim woman had been divorced and paid 'mehr', would it indemnify
the husband from his obligation under the provisions of section 125 of
the CrPC, which provides for payment of interim maintenance.
