MAINTENANCE : CONCEPT & PRACTICE FOR MUSLIM WOMEN

Maintenance of a divorced Muslim wife has always been a highly controversial and debatable social issue. The issue of maintenance of Muslim wife has been a very difficult path as compared to Hindu wife. This issue has been subject matter of BIG FIGHT by both Muslim fundamentalist and Hindu right wing.

Now coming to the legal technicalities of the issue, I would like to highlight the loop holes of statutes and the helplessness of the Legislature. The legal shortcoming of the maintenance law for Muslim Wife was used as a weapon by husbands to protect themselves from the liability of maintaining their wives. Prior to amendment, as per section 125 Cr.P.C.( Criminal Procedure Code)maintenance is granted only to the ‘Wife’ and therefore the husband started taking defence that the divorced women is no more his wife and henceforth not entitled for any maintenance. Then the legislature amended the section and inserted an explanation which clarifies that ‘wife’ includes divorced wives. However, husbands used another shield to protect themselves from the liability of maintaining their wife which was available under section 127(3) Cr.P.C.( Criminal Procedure Code),which says that if a women gets any customary payment after divorce then husband will not be responsible for her maintenance. In numerous cases, it was held that ‘Maher’ or ‘Dower’ is the sum mentioned under sec 127 (3).

Then the next stage came in, when the court recognized Dower as the sum mentioned under the aforesaid clause but emphasized that such amount should be fair & reasonable as observed in BAI FATIMA vs ALI HUSSAIN 1979 which find further approval of the Supreme Court in FAZLUNBI vs KHADERWALI 1980 (SC) so as to protect Muslim women from destitution.

Then another stage came when the court held that no matter whether the dower is paid or not, husband is liable to maintain his wife and held that Dower is not included in clause 3 of sec 127 and the court also mentioned verses of the HOLY Quran from chapter 2 verse 241 and 242 to signify that it’s a religious duty of a Muslim husband to provide reasonable maintenance to his divorced wife. This all happened in the infamous case of SHAHBANO BEGUM v/s MOHD AHMED KHAN (AIR 1986 : 945 SC

However, this led to wide spread demonstrations and controversy which pressurized then Rajiv Gandhi government to pass Muslim Women Protection of Rights on Divorce Act (1986). Once again, this legislation failed to address the real issue. This law created new confusion and contradiction because of loose drafting amongst the views of different High Courts. The most important section relating to controversy was sec 3 which used the word “within the iddat period “.The controversy was on its peak between Gujrat and Andhra High Courts in the cases of ARAB BAIL AND FATHIMUNNISSA BEGUM .

The constitutionality of this act was challenged in 2000 in the case of:

Though there is no fixed formula to arrive at the calculation of maintenance. Yet, the figure hovers around 30% to 40% of the salary/income.

DANIAL LATIFI vs UNION OF INDIA AIR 2000 (SC)

It was held that sec 3 of Muslim Women Protection of Rights on Divorce Act entitles a Muslim women for maintenance even beyond IDDAT period and the controversy was set aside once and for all.

Conclusion

By virtue of judicial pronouncements and other steps, rights of Muslim women has been restored but it will become fruitful only when under lying thinking are changed, the Muslim women should emancipate themselves educationally, economically and socially for their well being only and then they can understand their rights and worth and thereafter the social upliftment of the whole community is possible. We should always remember that mother is the first teacher and mentor of his child. It is a historical fact that no society ever lived in peace until their women folk are at peace.

Law Help Bangladesh

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