The quantam of maintenance is decided as per the classical law, so under the Hanafi law position of both the spouses is taken into consideration, the Shafei law considers only the husband's position and the Isna Ashari and Ismaili laws takes into account the wife's needs and the local custom prevalent. The Hanafi school does not permit past maintenance including divorced wives) but the other school of the Shia sect, the Shafei school allows past maintenance and in the words of the renouned Muslim law scholar Tahir Mahmood opines that this rational provision deserve to be applied to the Muslim women of all schools.
In India the Shariat Act, 1937 also recognizes the Muslim wife's right to maintenance. The section 488 of the old Code of Criminal Procedure1898 provides for criminal action by virtue of magistrate's orders for maintenance of wives which included Muslim wives too, as held in the case of Shahulmeedu v. Subaida Beevi. The Kerala High Court held that s. 488(3) of the Cr.P.C, applied to all Indian wives including Muslim wives.
The sections 125-128 of the new Code of Criminal Procedure 1973 retained the old provisions and now included the divorced wives too. A divorced wife now could ask for maintenance from the former husband if she was unable to maintain herself and the former husband even after having sufficient means neglects or refuses to maintain her. In various Supreme Court judgments in between 1979 and 1985 like Bai Tahira v. Ali Hussain Fidaalli Chothia and Fazlunbi v. K. Khader Vali held that Muslim women is entitled to maintenance under Section 125 and dealt with question of payment of maher under Muslim personal law.
The order of the magistrate stood cancelled under Section 127(3) only if the women's entitlement was paid fully under Personal law and this post divorce entitlement did not include the Maher which is considered as an attribute of marriage and not divorce or she remarries or had voluntarily given up her right of maintenance . The main controversy arising in this situation is regarding Muslim women's right to maintenance after the divorce. Prior to the Supreme Court judgement in Mohd Ahmed Khan v. Shah Bano Begum, it was generally held that the Muslim women did not have any right of maintenance once the period of iddat(period of separation) is over. But in this case the Supreme Court held that divorced Muslim women had the right to maintenance even after the period of iddat was over.
This judgment was followed by various repercussions in the Muslim community who felt their faith was under threat. The Muslim Personal Law Board opined that the Supreme Court was wrong in interpreting the holy Quran as per a judicial stand taken whereby it was held that the court would not interpret religious scriptures or holy books. The parliament to undo the effect of this judgement passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)(a) a divorced women is entitled to reasonable and fair provision and maintenance within the iddat period.
The Act while nullifying the Shah Bano ratio, tried to restrict the divorced Muslim woman's right to maintenance up to the iddat period only. A classic example of how political considerations ate into the rights of a section of the people, the Constitutional validity of the Act was challenged on the ground of being violative of Article 14, 15 and 21. The basic question raised by right activists was the necessity of enacting an Act, completely segregating a section of the population, while a secular remedy was already available under Section 125 of the Code of Criminal Procedure. In the face of this burning controversy, the Supreme Court in the case of Daniel Latifi v. Union of India approached a middle path and held that reasonable and fair provisions include provision for the future of the divorced wife (including maintenance) and it does not confine itself to the iddat period only. The Constitutional validity of the Act was also upheld.
The Danial Latifi judgment remains the final case law in this regard. However the debate has still not been put to rest. In the light of the contentions and arguments raised, we must thus critically examine the judgment.
The Danial Latifi judgment: A Critical Analysis: The most controversial question which has been politically significant in the recent past in the background of a secular constitution and the concept of welfare state is that whether or not a divorced Muslim woman after divorce post iddat period is entitled to maintenance by her husband or not. The iddat period is generally considered to be three menstrual courses if she is subject to menstruation, three lunar months if she is not subject to menstruation or if she is pregnant at the time of her divorce the period between her divorce and the delivery of child or the termination of pregnancy, whichever is earlier. Generally it is taken to be three months.
A divorced Muslim woman is entitled to maintenance from her husband during the period of iddat, after that Muslim personal law though nowhere expressedly permits maintenance after divorce but it also does not prohibits, specifically or impliedly, it anywhere. In fact interpretation of the Holy Quran shows that the Islam as a religion calls for providing maintenance to a divorced woman on a reasonable scale, and this is a duty of every righteous god fearing person . But this interpretation was highly debated upon and was considered as out of purview of the court as the court itself had decided that they would not be interpreting the religious texts, when it was so discussed in the case of Mohd Ahmed Khan v. Shah Bano Begum.
Smt. Kapila Hingorani and Smt. Indira Jaisingh, the Counsels standing on behalf of the petitioners contended that the expression 'wife' as included in the purview of the Section 125 of the Code of Criminal Procedure is a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The religion professed by a spouse or the spouses has no relevance in the scheme of these provisions whether they are Hindus, Muslims, Christians or the Parsis, pagans or heathens. This provision is not a part of the civil law applicable selectively to parties belonging to a particular religion but a criminal remedy applicable to all on a secular basis, the basis there being, neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves. The very spirit of this provision was the moral edict of law and morality could never be clubbed with religion . It was also further contended that Section 125 of the Code of Criminal Procedure is a provision made in respect of women belonging to all religions to avoid vagrancy after marriage and exclusion of Muslim Women from the same results in discrimination between women and women and so violating Article 15 of the Constitution. There is a violation of not only equality before law but also equal protection of laws and thus violating Article 14 which in turn inherently infringes Article 21 as well as basic human values.
The five judge bench of the Supreme Court consisting of Mr. G.B. Pattanaik, Mr. S. Rajendra Babu, Mr. D.P. Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil upheld the Constitutional validity of the Act.
The forward step taken by the same Court in the Shah Bano in the face of religious fanaticism was undone as the Court in the rationale said that, “Legislature does not intend to enact unconstitutional laws”. While it accepts social reality of a male dominated society, it fails to take recognition of the fact that the Act is inherently discriminatory. This can be very well proved by the fact that it brings within its purview only ‘divorced woman' who has been married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law. But the Act excludes from its purview a Muslim woman whose marriage is solemnized either under the Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Special Marriage Act, 1954.
The Act does not apply to the deserted and separated Muslim wives. Section 4 of the Act makes the relatives of the Divorced woman or the state wakf board responsible for the maintenance of the Divorced woman. But reality is that it is quite improbable that she will get sustenance from the parties who were not only strangers to the marital relationship which led to divorce. Also, wakf boards would usually not have the means to support such destitute women since they are themselves perennially starved of funds and the potential legatees of a destitute woman would either be too young or too old so as to be able to extend requisite support. Further more, the Court fails to answer the necessity of an Act, segregating Muslim women completely when a secular remedy is already available under the Section 125 of the Code of Criminal Procedure. Hindu women have their right to maintenance recognized under the Hindu Adoptions and Maintenance Act, 1956 but that no way bars her from claiming maintenance under Section 125 of the Code of Criminal Procedure.
So why, this discrimination, the Court fails answer that. The justification of the law being non discriminatory based on a reasonable classification and so not violative of Article 14 of the Constitution of India (as given in Danial Latifi judgement) does not hold good because a law for maintenance to divorced women was already in force and available to every women of India, irrespective of their caste, creed, religion. The proposition put forward that the Act in spirit tries to respect the provisions in the Personal Law does not hold good as it being a codified Law, has to pass the acid test of the Constitution, which it miserably fails. Another, fact to be noted is that Section 5 of the Act gave option to the parties to the divorce, the husband and the wife, to decide mutually to be governed either by Sections 125-128 of the Cr. PC or the provisions of the Act.
But the main criticism leveled against this section was that which Muslim husband would like to go through the rigours of the Cr.PC provisions when he can be governed by a much easier law. The Section 7 of the Act also provided that the pending applications under the Cr.PC were to be dealt within the purview of this Act. But Gujarat High Court has held in the case of Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai that a divorced Muslim woman can directly move to the Court under the Cr PC provisions.
However, in the middle path approach undertaken by the Supreme Court becomes evident as it reiterates the stand of the Gujarat, Kerala and Bombay High Courts earlier in this regard. The poorly drafted provisions of the Act, especially section 3, provided the Court with ample scope of interpretation. The bench laid special emphasis on the two words- ‘maintenance' and ‘provision' and distinguished between the precision of use of the two words as provision to be ‘made' and maintenance to be ‘paid'.
The time frame or the iddat period mentioned was held to be the time limit within which both maintenance for the iddat period and a ‘reasonable and fair provision' for the future in the form of a lump sum was to be paid to the divorced wife to avoid future vagrancy. The interpretation given to the Act by the Courts thus codified the Shah Bano ratio, while it tried to nullify it. The Supreme Court through this judgement put to rest the controversy relating to the interpretation of Holy Quran raised during the Shah Bano case and did not delve into that, but concluded that the word “mata” as interpreted in Muslim personal laws would support the Court's view of the term ‘provision' as one time lump sum payment.
Conclusion and present scenario:
Before the Danial Latifi judgement, the expression “provision and maintenance” created confusion as the High Court of Kerala in Ali v. Sufaira the Bombay High Court in the case of Abdul Rahman Shaikh v. Shehnaz Karim Shaikh and the Gujarat High Court in the case of Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai that the expression reasonable and fair provision meant arrangement for a lump sum amount for the future provision of the wife within the iddat period other than the iddat period maintenance. But contrary opinions were given by the judgements of the Andhra Pradesh High Court in the case of Usman Bahmani v. Fathimunnisa and the Calcutta High Court in the case of Abdul Rashid v. Sultana Begum and it was held that both expressions provision and maintenance meant the same, and it covered only maintenance for the iddat period only. After this judgement the judiciary has held in the cases like in the cases of Bilkis Begum v. Majid Ali Gazi it was held that claim of maintenance of the divorced wife cannot be proceeded under Section 125 of the Cr PC after the enactment of the 1986 Act.
The controversy still remains. The interpretation provided by the judiciary in the Danial Latifi case fails to satisfy the minds of the reasonable people, as there are glaring defectes on the face of it. But we should also keep in mind the social perspective. On one hand where it upholds the Constitutional validity of the Act, it also interprets the provisions of the Act in favour of the divorced Muslim women.
The Court could envisage that the country at such a juncture of Economic and Social growth, could not bear the burden of aftermath of another Shah Bano. But keeping in mind the changing times and the constantly evolving meaning of Article 21of the Constitution, which has been held to include the ‘right to live with dignity' under the case of Olga Tellis v. Bombay Municipal Corporation and Maneka Gandhi v. Union of India, it is a duty of the society to make sure that the divorced Muslim wife have the provision to maintain herself with dignity and is not led to destitution and vagrancy. The Personal law may connote a different thing but keeping the changing society in mind, it should be open to interpretation only for positive changes. That only can help us achieve the objectives of Social Justice laid down both expressed and implicitly in our Constitution.
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