Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.
Parliament, with its supposed omniscience in law, may, in its professed omnipotence enact legislations to undo and set at naught the effect of any judicial decision of the Supreme Court or any other Court, however good and conducive to the welfare of the people that decision may be. But to borrow from Shakespeare, while it may be good to have giant’s power, it may not at all be good to use the same as a giant.
It is now well-settled, since the celebrated decision of the Supreme Court in Olga Tellis,“ that right to life and personal liberty guaranteed under Art. 21 of the Constitution includes the right to livelihood. Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.
It is also equally well-settled, since the decisions of the Supreme Court in Maneka Gandhi and in Olga Tellis, that no one, obviously including a Muslim divorced woman, can be deprived of the right to life or livelihood except by the procedure established by law, which must be reasonable, right, just and fair.
Would the provisions of the Muslim Women (Protection of Righs on Divorce) Act of 1986, which apparently seeks to deprive a divorced Muslim woman of such right to maintenance from her former husband, and providing for maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run after her own relatives one after the other and then ultimately to knock at the door of the Wakf Board, at all appear to be reasonable and to be a fair substitute for the provisions of Chapter IX of the Code of Criminal Procedure? To put it in other words, whether deprivation of the Muslim divorced woman of her right to maintenance under the beneficial provisions of Chapter IX of the Code of Criminal Procedure, which are otherwise available to all other women in India, has been effected by a reasonable, right, just and a fair piece of law as enacted in the Muslim Women (Protection of Rights on Divorce) Act of 1986?
And if these provisions are much less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a Muslim divorced woman has obviously been unreasonably discriminated and driven out from the protection of the benign provisions of the general law as enacted in Chapter IX of the Code of Criminal Procedure, which are available to a Hindu, Buddhist, ]ain, Parsee or Christian woman or a woman belonging to any other community.
Now except for the protection afforded by Art. 25(1) the provisions are patently violative of Art. 14 of the Constitution mandating equality
before and equal protection of laws to all persons otherwise similarly circumstanced, and also violative of Art. 15(1) of the Constitution which forbids any discrimination on the ground of religion, as the Muslim Women (Protection of Rights on Divorce) Act of 1986 would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. This criticism has been accepted (almost verbatim) by the Supreme Court in Danial Latifi v Union of India.
Danial Latifi v Union of India
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged in Danial Latifi.
A Constitutional Bench of five judges speaking through Rajendra Babu, ] noted that the purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat, and thereby to reverse the decision in Shah Bano, but ironically the enactment actually codifies the very rationale contained in Drmial Latzﬁ.
At the outset the court noted that the Act in terms does not apply to a Muslim woman whose marriage is solemnised either under the Special Marriage Act 1954 or a Muslim woman whose marriage was dissolved either under the Divorce Act 1869 or the Special Marriage Act 1954 nor to the deserted and separated Muslim wives.
It was also made clear that to find out the personal law of Muslims with regard to divorced women’s rights, the starting point should be Shall Bano case and not the original texts or any other material all the more so when varying versions as to the authenticitv of the source are shown to exist.
The court held that if the provisions of the 1986 Act were read as less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law which are available to Hindu, Buddhist, ]ain, Parsi or Christian women or women belonging to any other community. The provisions would then be violative of Art. 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Art. 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion”.2° To avoid this result the court interpreted the Act by reading its provisions in a manner which would make it compatible with constitutional principles.
Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986 were the principal sections, under attack before the court. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled inter ailia to a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband”. Section 4 provides that as long as the divorced woman has not remarried and is unable to maintain herself after the iddat period the Magistrate may order such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and lair maintenance to her; if they do not have the means then other relatives who do have the means and failing them the State Wakf Board.
The constitutional validity of these two sections was upheld through a process of ingenious interpretation. The court found ﬁrst that the wordings of s. 3 of the Act indicated that the husband has two separate and distinct obligations:
(1) to make a “reasonable and fair provision” for his divorced wife; and (2) to provide “maintenance” for her?‘ Second it was held that the word “provision” in s. 3(1)(a) of the Act incorporates “mata” as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period. Third it found that the emphasis of s. 4 is not on the nature or duration of any such “provision” or “maintenance”, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, “within the iddat period”.
Fourth, “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it”.
It would therefore ”extend to the whole life of the divorced wife unless she gets married for a second time”.3 Fifth, the court held “Section 4 of the Act refers only to payment of ‘maintenance’ and does not touch upon the ’provision’ to be made by the husband referred to in s. 3(1)(a) of the Act.”4 Consequently the right to have a fair and reasonable provision in her favour is a right enforceable against the woman’s former husband in addition to what he is obliged to pay as “maintenance” and so “there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman”. Finally it was held “what could be earlier granted by a Magistrate under 5. 125, CrPC would now be granted under the very Act itself This being the position, the Act cannot be held to be unconstitutional”.
Unfortunately, the court ignored the provisions of Art. 25 and its impact on personal laws for arriving at the same conclusion. It is arguable that the State is limited by Art. 25(2) to enact legislation to amend personal laws only for “social welfare and reform”. Further the legislation so enacted must be in compliance with fundamental rights.
Gajendragadkar, J. in Narasu Appa Mali, had said that the State Legislature can take gradual steps for social welfare and reform but cannot introduce distinctions or classifications which are unreasonable, irrational or oppressive. Since the 1986 Act is certainly neither a measure for “social welfare and reform” under Art. 25(1) nor a measure in compliance with the principle so enunciated, it is unconstitutional.
The decision although it reaffirmed Shah Bano, strangely did not cause any protest and is now the accepted as the authority for the proposition that that the powers and jurisdiction of a Magistrate under the 1986 Act are co-extensive with the those under s. 125 of the Code of Criminal
Procedure as far as a Muslim divorced woman’s right to
maintenance is concerned.
Even prior to Danial Latifi’s case the Supreme Court had already tempered the impact of s. 4 which provides for the right of a divorced woman to claim maintenance sequentially against various relatives and ultimately against the State Wakf Board, by directing that “she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, maintaining her and directing her claim against the State Wakf Board in
the first instance” .
At present, as a result of the decision in Danial Latifi, according to some High Courts9 the Muslim divorced wife has higher rights than her counter parts in other religions.
Like other divorced wives under Section 125, CrPC, she can get monthly maintenance under s. 3 of the Act provided she is unable to maintain herself. Even when she is able to maintain herself and is even a millionairess, she can get the capitalised payment of amounts under s. 3 of the Act which other divorced wives cannot. Again while the remarriage puts an end to the claim of other divorced wives, the Muslim divorced wife on re-marriage can keep the capitalised amount with herself with no liability to return the same. Thus viewed from any angle, the Muslim divorced wife under her personal
law (i.e. the Act) has larger and superior rights than what her counter parts of other religions have under s. 125 of the Code”.
The Act, however, does not in any way affect the rights of the Muslim children to claim maintenance from the father and the provisions of Chapter IX of the Code of Criminal Procedure can obviously be invoked by or on behalf of such children. Section 3(1)(b) of the Act, no doubt, provides that a divorced women shall be entitled to, where she herself maintains the children born to her before or after divorce a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children. But as has been held,“ and rightly too, the right under s. 3(])(b) is a right of the divorced woman hersclfand is incidental to the divorce and the said provisions can in no way affect the operation of the provisions of Chapter IX providing maintenance for minor children.