THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986)

Divorce can be a challenging and sensitive issue, especially when it involves the rights and welfare of women. In India, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted to safeguard the rights of Muslim women after divorce. This law aims to provide clarity and protection regarding maintenance and other rights, addressing concerns that arose from earlier interpretations of Muslim personal law. This article explores the key aspects of the Act, its implications, and how it affects Muslim women today.

Background and Purpose of the Act

Before 1986, Muslim women’s rights after divorce were governed primarily by Islamic personal law, which varied in interpretation and application. The Supreme Court of India, in the Shah Bano case (1985), ruled in favor of a divorced Muslim woman’s right to maintenance under the general criminal procedure code. This decision sparked widespread debate and led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Act was designed to:

• Protect the rights of Muslim women after divorce.
• Define the extent and duration of maintenance.
• Clarify the responsibilities of the husband and his relatives.
• Ensure that divorced women receive fair treatment under the law.

Explain the Salient features.of the Muslim Women (Protection of Rights on Divorce) Act 1986. OR What led to the passing of this Act? Discuss its objects and provisions.THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986)

Ans. An Act to protectthe rights of Muslim women who have been divorcedby, or have obtained divorcefrom, their husbands and to provide for matters connected therewith or incidental thereto.

Notes : Un Bai Tahir v. AllHussain, (1979) 2 SCO 316 :1979 SCC (cri) 473 it was laid down that obligation to pay maintenance to a divorcedwife is not discharge on making customary payment as required by one’s personallaw unless such payment is a just substitute for a proper maintenance allowance under Section 124 Cf PC. It was further laid down that payment of Nehar money,(as customary discharge) was within the cognizance of Section 127’(3)(b). The same view was ex­ pressedin Fulzlunbi v. K. Khadervali, (1980) 4 SCC 125. In Mohammed Ahmad Khan v. Shah Bano Begam, (1995) 2 SCC 556 :1985 SCC (Cri)245, a constitution Bench of the SupremeCourt laid down that paymentof Nehar or dower by husband to the wife did not attract Section127 (3) (b) and order of maintenance under Section 125 could not be cancelled on such payment.The Supreme Court quoted certainverses from Quoranand observed that there was no conflictbe­ tween Section125 CrPC and Muslim communitystrongly opposed this decision hencethis Act has been passed by the Parliament.

Section 2~| Definitions - In this Act, unlessthe context otherwise requires -

(a)“divorced woman” means a Muslim woman who was marriedaccording to Muslimlaw, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim law;

(b) “Iddat period” means, in the case of a divorcedwoman, - (i) three menstrual courses after the date of divorce, if she is subject to menstruation; (ii) three lunar months after her divorce,if she is not subject to menstruation; and (iii) itshe is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or thetermination of her pregnancy, whichever is earlier.
(1) Divorced woman - The definition of ‘divorcedwoman’ is very wide. It includes all modes of divorce recognised by Muslim law. Thus a divorce obtainedby wife under Dissolution of Muslim Marriage Act, 1939 is also included in this definition. The following are various forms of non-statutory divorce: (1) Bilateral divorce by the spousesi.e. Mubara at orKhula (2) Unilateral divorce by hus­ band. This may be eitherTalaq al-Sunna i.e. in conformity with the dictatesof the prophet or Talaq-al- Bida (3) Unilateral divorce by wife i.e. Talak-e-tafwiz.
(2) Divorce under Muslimlaw - Dr. Ahmad A. Galwashin his book Religion of Islam says
-“Marriage being regardedas a civil contract and as such not indissoluble, the Islamic law naturally recognises the right in both the parties, to dissolve the contract under certain givencircumstances. Divorce, then, anatural corollary to the conception of marriage as a contract...
After quoting from the Quoran and the Prophet, Dr. Galwash concludes that "divorce is permis­ sible in Islamonly in cases of extremeemergency. When all efforts for effecting a reconciliation havefailed, the partiesmay proceed to a dissolution of the marriageby 'Talaq’-or by 'Khola”. When the proposalof divorce proceedsfrom the husband,it is called “Talaq", and when it takes effect at the instance of the wife it is called “Khola”.Consistently with the secular conceptof marriage and divorce, the law insiststhat at the time ofTalaq the husbandmust pay off the settlement debt to the wife and at the time of Khola she was to surrender to the husband her dower or abandon some of her rights, as compensation.

(3) Divorce : Meaningof - The word divorceis not defined in the Act. Webster’s Third New International Dictionary states it to mean, amongst other things :
(a) legal dissolution in whole or in part of a marriage relationusually by a court or other body having competent authority;.
(b) an absolute dissolution of a valid marriage made by decree of court for lawfulcause arising after the marriage (distinguished from annulment);
(c) a formal separation of-man and wife by the act of one party or by consent accordingto established custom.

(4) Divorce : Modes of - Under the Mohammedan law there are three separatemodes in which a Muslim marriage can be dissolved and the relationship of the husband and thewife termi­ nated so as to result in an irrevocable divorce:
(1) Where the husbandunilaterally gives a divorce accordingto any of the forms approved by the Mohammedan law, viz., talak hasan, which consists of a singlepronouncement of divorceduring tuhr ( period between menstruations) followedby abstinence from sexual intercourse for the period of iddat;or talak Has’anwhich consists of three pronouncements made during the successive tuhrs,no intercourse taking place between three tuhrs; and lastly ta)ak-ul-bidaat or talak-i-badai which con­ sists of three sentences signifyinga clear intention to divorcethe wife, for instance, the husband saying ‘I divorce thee irrevocably’ or ‘I divorcethee, I divorce thee, I divorce thee’. The third form referredto above is however not recognised by the Shia law.

A divorce or talaq may be given orally or in writingand it becomes irrevocable if the periodof idat is observed (thoughit is not necessary that thewoman divorced should come to know of the fact that she has been divorced by her husband).

(2) By an agreementbetween the husbandand the wife whereby a wife obtainsdivorce by relinquishing either her entire or part of the dower.This mode of divorce is called ‘khula’or mubarat. This form of divorceis initiated by the wife and comes into existence if the husbandgives consent to the agreementand releases her from the marriage tie. Where, however,both parties agreeand desire a separation resulting in a divorce, it is called mubarat. The gist of these modes is that it comes into existencewith the consentof both the parties particularly the husband becausewithout his consentthis mode of divorce would be incapableof being enforce.A divorce may also come into existence with the consentof both the parties particularly the husband becausewithout his consentthis mode of divorce would be incapable of being enforce. A divorce may also come into existence by virtue of an agreementeither before or after the marriage by which it is providedthat the wife should be at libertyto divorce herselfin specified contingencies which are of a reasonable nature and whichagain are agreed to by the husband.In such a case the wife can repudiate herselfin the exercise of the power and thedivorce would be deemed to have been pronounced by the husband. This mode of divorce is called‘tafweez’.
(3) By obtaining a decree from a civil court for dissolution of marriage under Section 2 of the Act of 1939 which also amounts to a divorce (under the law) obtained by the wife.

(5) Revocation of Divorce - According to Mulla : Principles of Mohammedan Law, a talaq in the Ahsan mode becomesirrevocable and completeon the expiration of the period of Iddat, and until a talaq becomes irrevocable, the husband has the optionto revoke it, which may be done either expressly, or impliedly as by resuming sexual intercourse.

According the Tyabji’sTreatise on MuslimLaw, under Hanfilaw the revocation of a talaq may be impliedor conclusively presumedfrom the conductof the husband even thoughhe be of unsound mind; and that under Shafi taw, the revocation must always be express or by resumpti.on of secual intercourse.
(6)“Has obtaineddivorce” - There can be no doubt that under the Mohammedan law the most common form of divorceis a unilateral declaration of divorce by the husband according to the various forms recognised by the law. A divorcegiven unilaterally by the husbandis especially peculiarto Mohammedan law. In no other law has the husband got a unilateral right to divorcehis wife by a simpledeclaration because other laws, viz., the Hindu law or the ParsiMarriage and DivorceAct, 1936, contemplate only a dissolution of marriage on certain groundsbrought about by one of the spousesin a court of law.

Before the enactmentof the Act of 1939 a woman under pure Mohammedan law had no right to get a decree for divorce from the husbandif he refused to divorceher. This was undoubtedly the fundamental conceptof divorce as laid down by the Mohammedan law. As, however,some of the Muslim Juristsand Theologists were the view that where a husbandbecomes impotent or disappears for a largenumber of years or treatshis wife with great cruelty,the wife should have some right to approach the Quazi for dissolving the marriage. Relyingon these authorities the legislature inter­vened and passedthe Dissolution of Muslim MarriagesAct, 1939 under.which the wife was conferred a legal right to move the civil court for a decree for dissolution of marriage on the grounds specified in section2 of the Act of 1939.

| Section3 | Mahr or otherproperties of Muslimwoman to be given to her at the time of divorce - (1) Notwithstanding anything contained in any other law for the time being in force, a divorce woman shall be entitled to -
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat periodby her former husband;

(b) where she herselfmaintains the childrenbom to her before or after her divorce, a reasonable and fairprovision and maintenance to be made and paid byher former husband for a period of two years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreedto be paid to her at the time of her marriageor at any time thereafter according Jo Muslim law; and

(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

;
(2) Where a reasonable and fair provisionand maintenance or the amountof mahr or dower due has not been made or paid or the properties referredto in clause (d) of sub-section (1) have not been deliveredto a divorced woman on her divorce,she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an orderfor payment of such provision and mainte­ nance,mahr or dower orthe delivery of properties, as the case may be.

(3) Where an application has been made under sub-section (2) by a divorced woman,the Mag­ istratemay, if he is satisfied that -
(a) her husband having sufficient means, has failed orneglected to make or payher within the iddat period areasonable and fair provision and maintenance for her and the children, or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referredto in clause (d) of sub-section (1) have not been deliveredto her, make an order,(within 'one month of the date of the filingof the application), directing her former husband to pay such reasonable and fair provision and maintenance to the divorcedwoman as he may determine as fit and proper having regard to the needs of the divorced woman, the standardof life enjoyed by her during her marriage and the means of her former husbandor, as the case may be, for the payment of such mahr or dower or the deliveryof such properties referred to in clause (d) of sub-section (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period,he may, for reasonsto be recorded by him, dispose of the application after the said period.

(4)If any person against whom an order has been made under sub-section (3) fails withoutsufficient cause to comply with the order,the Magistrate may issuea warrant for levying the amount of maintenance or rrjahr or dower due in the manner providedfor levying fine under the Code of Criminal Procedure,x1973 and may sentence such person, for the whole or part of any amount remaining unpaid after the executionof the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

Section 4 | Order for payment of maintenance - (1) Notwithstanding anything contained in the foregoingprovisions of this Act or inany other law for the time being in force, where a Magistrate is satisfiedthat a divorced woman has not re-married and is not able to maintain entitledto inherit her property on her death according to Muslim law to pay such reasonable and divorced woman, the standardof life enjoyedby her during her marriageand the meansof such relativesand such mainte­nance shall be payable by such relativesin the proportions In.which they would inherither property and at such periods as the may specify in his order:

Provided that where such divorcedwoman has children,the Magistrate shallorder only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorcedwoman to pay maintenance to her:

Provided further that if any of the parentsis unable to pay his or her share of the maintenance ordered by the Magistrate may on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relativesin the maintenance ordered by him be paid by such of the other relatives as may appearto the Magistrate to have the means of payingthe same in such proportions as the Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintainherself and she has no relatives as mentioned in sub-section(l) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relativeswhose shares have been orderedby the Magistrate to be paid by such other relatives under the provisoto sub-section (1), the Magistrate may, by order,direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 (29 of 1954),or under any other law for the time beingin force in a State, functioning in the area in whichthe woman resides, to pay .such maintenance as deter­ mined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.

| Section5| Option to be governedby the provisions of sections125 to 128 Cr. P.C.•- If, on the date of the first hearing of the application under sub-section (2) of Section3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governedby the provisions of Sections125 to 128 of the Code of Criminal Procedure, 1973 (2 to 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

Explanation- For the purposes of this section,‘date of the first hearingof the application” means the date fixed in the summons for the attendance of the respondent to the application.

|Section6- Power to make rules- (1) The Central Government may be notification in the. officialGazette, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the foregoing power, such rules may providefor - (a) the form of the affidavit or other declaration in writing to be filed under Section 5;

(b) the procedure to be followedby the Magistrate in disposingof applications under this Act, including the serving of notices to the partiesto such applications, dates of hearing of such applica­ tions and other matters;

(c) any other matter which isrequired to be or may be prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made., before each House of Parliament, whileit is in session, for a total period of thirty days which may be comprised in one sessionor in two or more successive sessions,and if, (before the expirycf the session immediately followingthe session or the successive sessions aforesaid,) both H ouses agree in making any modification in the rule or both Houses agree that the rules should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 7 | Transitional provisions - Every application by a divorcedwornar I under Section125 or under Section 127 of the Code of Criminal Procedure, 1973 (2 to 1974), pondingbefore a Magistrate on the commencement of this Act, shall,notwithstanding anything contaii ned in that Code and subject to the previous of Section 5 of this Act, be disposed of by such Magistrat e in accordance with the provisions of this Act.

Conclusion

The Muslim Women (Protection of Rights on Divorce) Act, 1986 plays a crucial role in protecting the rights of Muslim women after divorce. It ensures maintenance during the iddat period and provides for a reasonable future provision, while also addressing custody and divorce procedures. Although the Act has limitations and faces criticism, it remains a significant legal safeguard for divorced Muslim women in India.