The Indian legal system has always been known as ‘a lawyer’s paradise’, particularly the arena of personal law. The diversity of India coupled with customs involved in different part of this country has proved time and again that we need to simplify the law involved for better administration of justice.

The present article aims to simplify the Muslim personal law, particularly the maintenance part on the basis of judgments given by the Supreme Court of India.

The hue and cry of the Muslim fraternity after the famous Shah Bano case[1], led the Central Government to formulate Muslim Women (Protection of Rights on Divorce) Act, 1986 hereinafter written as the Act. This Act created a statutory duty upon the husband and relatives of the Muslim divorced women to maintain her, in case she is unable to maintain herself[2]. The literal interpretation of the Act provides that, the divorced women are entitled to maintenance within the ‘iddat period’[3]. Subsequently, the issue arose was whether Muslim women are legally entitled for maintenance post-divorce period, till the time she remarries. Further the Apex Court in Danial Latifi case[4] settled the issue and concluded that the Muslim’s husband has to make reasonable and equitable provisions for the future of his divorced wife within the ‘iddat period’ itself.

Shabana Bano Case[5]

In this case, the Appellant filed an application under Section 125 of Code of Criminal Procedure, 1973(CrPC) for the maintenance before the Family Court, Gwalior. In its reply the Respondent alleged that he has already given divorce to the Appellant by uttering words ‘Talaq’ three times and so the application is not maintainable, as now the Act is applicable to the Appellant. The application was partly allowed on an erroneous interpretation of the Act and it was held therein that, the Appellant now being a divorced woman, the maintenance should only be provided to her till the ‘iddat period’[6]. The Appellant went for revision, high court reiterated the principle as laid down by the apex court, that the duty upon husband of a divorced women to maintain her is not limited only till the ‘the iddat period’, but dismissed the revision application on the technical ground that, the Family Court Act, 1984[7], which confer jurisdiction on the family court over district court and subordinate civil courts has to be interpreted in restricted manner. The High Court concluded that these subordinate civil courts are different than the Court of magistrate and further concluded that, the Act mandates that application for maintenance should be made only before the Court of magistrate and in present case the application has been made before the family court. The High Court line of reasoning was that, if the legislature intended to provide jurisdiction to Family Court within this Act, then legislature could have expressly conferred such jurisdiction on the family court within the Act itself. The Supreme Court allowed the appeal moved by the Appellant and reversed the findings of the High Court. Apex Court has referred to the Iqbal Bano judgment[8], wherein it was held that, proceeding under Section 125 CrPC is civil in nature and there is discretion conferred on the court to treat the application made under Section 125 CrPC along with other petition under the Act. Hence, Apex Court concluded that, family court has also jurisdiction over application made under Section 125 CrPC. Supreme Court remanded the matter to the family court to decide the application on merit.

Conclusion

The law is clear on the aspect of maintenance and two efficacious remedies are available to Muslim divorced women, one under the CrPC another under the Act. The Act being a beneficial legislation aims to codify the Muslim personal law, but fails to provide effective solutions particularly in respect of alteration of allowance as provided under Section 127 CrPC and expects Muslim divorce women to be maintained through dysfunctional State Waqf board and relatives after the ‘iddat period’[9].

The article has been authored by Vaibhav Dubey


[1] Mohd. Ahmed Khan v. Shah Bano Begum & Ors., MANU/SC/0194/1985.

[2] S. 3, Muslim Women (Protection of Rights on divorce) Act, 1986.

[3]  S. 2 (b), Muslim Women (Protection of Rights on Divorce) Act, 1986.

[4] Danial Latifi & Anr. v. Union of India, MANU/SC/0595/2001.

[5] Shabana Bano vs. Imran Khan, MANU/SC/1859/2009.

[6] S. 2(b),  Muslim Women (Protection of Rights on Divorce) Act, 1986

[7] Ss. 7 & 8, Family Court Act, 1984.

[8] Iqbal Bano v. State of U.P.& Anr, MANU/SC/2545/2007.

[9] S. 4,  Muslim Women (Protection of Rights on Divorce) Act, 1986

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