Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, writes on how our judicial system upholds the rights of Muslim women.

Like all personal laws, Hindu, Parsi or Christian, Muslim personal laws also contain several provisions, which continue to be, discriminatory against women.  The journey of Muslim women from the case of Shah Banu to Shayara Banu, are illustrative of this discrimination.

As regards maintenance, the Muslim Personal Law limits the husband’s liability to provide for maintenance to a divorced wife up to the iddat period only.   However, in the decision of  Mohd. Ahmed Khan v.s Shah Bano Begam, AIR 1985 SC 945, which proved to be a critical milestone in the history of Muslim Law and also this country, this concept  was challenged by holding  that “If the divorced Muslim woman is able to maintain herself, the husband’s liability ceases with the expiration of the period of iddat. However it would be incorrect and unjust to extend the above principle of Muslim Law to the cases in which divorced wife is unable to maintain herself.  Hence if she is unable to maintain herself after the period of iddat, she is entitled to file application for maintenance u/s 125 of Cr.P.C. like women of any other religion.”

“Talaq must be for reasonable cause and it should be preceded by attempts at reconciliation between husband and wife by the arbitrators, one from the wife’s family and the other from the husband. If the attempts failed, Talaq may be affected.”

The above observations of the Supreme Court created an uproar and were criticized as an encroachment on Muslim personal laws. The Government, hence enacted ‘The Muslim Women (Protection of Rights on Divorce) Act 1986’, to again limit the rights of Muslim women to get maintenance upto the period of Iddat only. Section 3 of the Act specifically provided that “divorced Muslim women are entitled to a reasonable and fair provision of maintenance to be made and paid to her within iddat period for herself and for her minor children by her former husband”. However when this Section came for interpretation before the Full Bench of Bombay High Court in the case of Karim Abdul Rehman Shaikh v.s Shehanaz Karim Shaikh, 2000 (5) BOM C.R. 758  and thereafter before the Supreme Court in the case of Daniel Latifiv.s. UOI, (2001) 7 SCC 740, it was categorically held that, “Husband’s liability to pay maintenance to a divorced wife ceases the moment iddat period is over, but he has to make reasonable and fair provision for her within iddat period which should take care of her for the rest of her life or until she gets married again.” It was further held that, “ the word ‘within’ used in S.3(1)(a) would mean ‘on or before’ and therefore before the expiration of iddat period the husband is bound to pay maintenance to the wife and if he fails to do so, then the wife is entitled to recover it by filing an application as provided  u/s. 3 (3), as  nowhere parliament has provided that the reasonable and fair provision is limited only for iddat period and not beyond it. Hence it would extend to her whole life unless she gets remarried.”  It was held that, “while deciding the amount, regard shall be paid to the needs of the divorced woman, the standard of life enjoyed by her during her marriage, the means of her husband and similar   circumstances. If the husband is unable to arrange for such lump-sum payment, he can ask for paying the amount as installments and the court shall consider granting him permission for the same.” It was further held that, “till the husband makes fair and reasonable provision, the magistrate may direct monthly payment to the wife even beyond the iddat period subject to the fixation of the amount of fair and reasonable provision.” Thus through its innovative and ingenious interpretation, the Judiciary has ensured that Muslim women’s right to get maintenance even beyond the period of iddat, which was  taken away by the legislature, is restored to them.

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As regards the right of Muslim women to get maintenance for minor children, which was limited by the Act, up to two years of children’s age, was expanded by the Supreme Court , in the case of Noor Saba Khatoon v.s Mohd. Quasim, AIR 1997 SC 3280 by holding that, section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father u/s 125, Cr. P.C. till they attain majority or are able to maintain themselves, and in case of girls, till they are married. Thus by way of progressive interpretation, the judiciary has removed hurdles created by the legislature and retained Muslim women’s right to get maintenance for herself and her children beyond the period of iddat.

“If the divorced Muslim woman is able to maintain herself, the husband’s liability ceases with the expiration of the period of iddat. However it would be incorrect and unjust to extend the above principle of Muslim Law to the cases in which divorced wife is unable to maintain herself.  Hence if she is unable to maintain herself after the period of iddat, she is entitled to file application for maintenance u/s 125 of Cr.P.C. like women of any other religion.”

As regards the practice of oral triple talaq also, much before the legislature enacted the law, prohibiting the same and making it an offence punishable with imprisonment, the judiciary put lot of restrictions on the said practice. In the landmark decision of Dagadu Chotu Pathan v.s Rahimbi Dagdu Pathan, 2003 Bom. C.R. (Cri) 251 the full bench of Bombay High Court  held that, “Talaq must be for reasonable cause and it should be preceded by attempts at reconciliation between husband and wife by the arbitrators, one from the wife’s family and the other from the husband. If the attempts failed, Talaq may be affected.” It was held that “attempts at reconciliation by the two relations, one from each of the parties are an essential condition precedent to Talaq”. In the case of Shamim Aara v.s State of U.P.2003 Bom C R (Cri) SC 662 it was further held that, “mere statement made in writing before the Court in any form or in oral deposition regarding Talaq having been pronounced some times in the past is not sufficient to hold that the husband divorced his wife. Merely taking plea of divorce is also not sufficient. The fact of divorce has to be proved by leading cogent evidence as per law. By relying upon the observations of Justice Krishna Iyer, it was held that, “the interpretation of a legislation which is intended to protect the weaker section of the community, like women, must further the beneficent object.  This is the governing principle of the Islamic law that the liability of husband to pay maintenance to his wife does not come to an end unless there is valid talaq”. Ultimately it was the decision of the Supreme Court in Shayara Banu vs Union of India (2017) 9 SCC 1, holding the practice of oral tripal talaq as unconstitutional and directing the legislature to make suitable law for the same, which led to passing of ‘The Muslim Women (Protection of Rights on Marriage) Act, 2019’.  The rest as they say is history!!

Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, is guest writer with Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.

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