THE MUSLIM WOMEN (PROTECTION OF RIGHTS

ON DIVORCE) ACT, 1986

         
The Muslim Women (Protection of Rights on Divorce) Act is a Central legislation enacted in
1986 to safeguard the rights of divorced Muslim women who have been separated from their
husband either by themselves or by the husband. The Act was passed to invalidate the decision
of the Supreme Court in Mohammed Ahmed Khan v. Shah Bano Begum, in which the Court
observed that where a Muslim woman is not remarried and cannot maintain herself, she can
claim maintenance from her former husband as long as she remains unmarried.

According to the Act, a ‘divorced woman’ is a Muslim woman married and divorced from her
husband under the Muslim Law. The former husband shall pay the divorced woman rational and
fair maintenance during the iddat period. Where the maintenance of children is borne by the
woman, the husband is under an obligation to pay maintenance to the children for a period of two
years from the child’s date of birth. The woman is also entitled to receive a sum equivalent to
mahr agreed during or after the marriage, all properties given to her by her parents or relatives
etc. If the husband fails to comply with the provisions of the Act, the woman shall file an
application before the magistrate for an order to compel the husband to provide her maintenance,
mahr, property and such other allowances specified by the Act.

The magistrate shall examine the application and such other evidences and make an order
directing the husband to pay the woman reasonable requirements and maintenance at the term of
iddat. Where the husband again fails to pay the amount, the magistrate shall issue a warrant to
pay fine in a manner prescribed under the Criminal Procedure Code and imprisonment for a term
of one year or till the amount is paid. After the iddat period if the woman is unable to maintain
herself, the magistrate shall make an order directing her relatives who would succeed to her
property after her death, to pay maintenance equivalent to the proportion of the property
inherited.

The Act further provides that where the divorced woman has children who are able to pay
maintenance, the Court shall order such children to provide maintenance to the divorced woman.
But if the children are incapable to pay the amount, the Court shall order the parents of the
woman to maintain her. If the parents or relatives do not have the means to maintain her and
their properties are insufficient the Court shall order such other relatives who are competent to
provide maintenance to the divorced woman to do as directed.

The proviso to the Act provides that the magistrate is of the opinion that the parents or relatives
are not competent enough to maintain the woman, the Court shall order the State Wakf Board,
within the local limits where the woman resides, to pay the sum for her maintenance. If the
husband and wife files an affidavit to the Court that they are likely to be governed by the
provisions of the Criminal Procedure Code, 1973, the Court shall conduct the proceedings and
dispose the case accordingly. The Central Government shall have power to formulate rules
dealing with the format of affidavit, procedures and methods to be pursued by the Magistrate and
any other matter connected therewith.

The legislation has been subject to criticism from its inception that the fundamental purpose of
the Act is to save men and not the women. Moreover, the Act has been formulated before twenty
seven years and till now no measures have been taken to amend the controversial provisions and
protect the vulnerable section of Indian society. It is also argued that the Act is not in conformity
with the provisions of the Constitution and it would not serve the purpose enunciated in the
Preamble.
The Muslim Women (Protection of Rights on Divorce) Act was a controversially
named landmark legislation passed by the parliament of India in 1986 to allegedly
protect the rights of Muslim women who have been divorced by, or have obtained
divorce from, their husbands and to provide for matters connected therewith or
incidental thereto. The Act was passed by the Rajiv Gandhi government to nullify the
decision in Shah Bano case.[1][2][3] This case caused the Rajiv Gandhi government, with
its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act,
1986 which diluted the secular judgment of the Supreme Court.
The law applies to the whole of India except Jammu and Kashmir. It is administered by
any magistrate of the first class exercising jurisdiction under the Code of Criminal
Procedure, 1973. As per the Act, a divorced Muslim woman is entitled to reasonable
and fair provision and maintenance from her former husband and this should be paid
within the period of iddah.
According to the Statement of Objects and Reasons of this Act, when a Muslim divorced
woman is unable to support herself after the iddah period that she must observe after
the death of her spouse or after a divorce, during which she may not marry another
man, the magistrate is empowered to make an order for the payment of maintenance by
her relatives who would be entitled to inherit her property on her death according to
Muslim Law. But when a divorced woman has no such relatives, and does not have
enough means to pay the maintenance, the magistrate would order the
State Waqf Board to pay the maintenance. The 'liability' of husband to pay the
maintenance was thus restricted to the period of the iddah only. [4][5]
Personal Laws
High Courts have interpreted "just and fair provision" that a woman is entitled to during
her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of
rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act
with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex
and held that the intention of the framers could not have been to deprive Muslim women
of their rights. Further the Supreme Court construed the statutory provision in such a
manner that it does not fall foul of Articles 14 and 15.
The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights
on Divorce) Act, 1986 which states that "a reasonable and fair provision and
maintenance to be made and paid to her within the iddah period by her former
husband".[6] The Court held this provision means that reasonable and fair provision and
maintenance is not limited for the iddah period (as evidenced by the use of word "within"
and not "for"). It extends for the entire life of the divorced wife until she remarries.
[7]
 In Shabana Bano v Imran Khan, the Supreme Court held that a Muslim divorced
woman who has no means to maintain herself is entitled to get maintenance from her
former husband even after the period of iddah and she can claim the same under S.125
CrPC.[8][9]
Divorced women are entitled to maintenance not only for iddat period from their former
husband but also to reasonable and fair provisions for future maintenance. S.3 of the
Muslim Women (Protection of Rights on Divorce) Act has to be given under the liberal
interpretation to help divorced women. K. Zunaideen v. Ameena Begum (1998) 1 ctc
566[10]