Mention the circumstances which led to the enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986. Whether the objectives of passing this Act have been achieved? Discuss.

Question: Mention the circumstances which led to the enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986. Whether the objectives of passing this Act have been achieved? Discuss. [HJS 2009]

Find the question and answer of Muslim Law only on Legal Bites. [Mention the circumstances which led to the enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986. Whether the objectives of passing this Act have been achieved? Discuss.]

Answer

The Muslim Women (Protection of Right on Divorce) Act, 1986 was enacted to give protection to Muslim Women who got married under the obligations and rituals of the Muslim laws and got divorced by the same marriage under the obligations of Muslim laws then this act will provide protection to the rights of the Muslim Women post-divorce.

The objectives of the Act as set out in the preamble read: "An Act to protect the rights of Muslim women who have been divorced by, or have obtained a divorce from, their husbands and to provide for matters connected therewith or incidental thereto"

This Act defines divorce and covers talaq, ila, zihar, talaq-i-tafweez, among other divorce methods. This law makes provisions for the maintenance of divorced Muslim women during and after the period of Iddat as well as for enforcing her claim to any unpaid dower or other exclusive possessions even though it was not intended to interfere with or invalidate any divorce rights.

The Act has been implemented to preserve the rights of Muslim Women because in India Muslim community has treated Women as property and marriage as a civil contract. Women have faced many challenges to survive in the conservative nature and environment which actually hinders the development of Muslim women in Society. The major change in Muslim Personal Law happened after the infamous Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, which led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

According to Section 125 of the Criminal Procedure Code, this act really denied Muslim women the right to maintenance. This led to a significant upheaval in Indian politics. It gave the appearance that the Rajiv Gandhi administration, which was watching out for the Muslim vote, had allowed itself to be swayed and under pressure from the Muslim leadership. Progressive organizations, other women's organizations, and other Muslim women's organizations protested, but they were powerless to halt it.

The Act came into force and was infringing constitutional provisions of the right to equality at its literal reading but this contention was rejected in Danial Latifi and Another v. Union of India, (2001) 7 SCC 740, the supreme court held that this act is constitutionally valid and its aim is not to penalize the husband and a separate law for a community on the basis of personal laws applicable to the such community, cannot be held discriminatory.

The Supreme Court while interpreting the constitutional validity of the act has summed up with some ratios which are as follows:

1. The former husband of a divorced Muslim wife is liable to make reasonable and fair provisions for the future of such a divorced wife which obviously includes her maintenance as well.

2. Liability of a Muslim Husband towards his divorced wife to pay maintenance is not confined to the Iddat period. It would extend to the whole life of the divorced wife unless she got married for a second time.

The first and most important aspect of this act that is positive is the provision of maintenance to the women throughout each stage until they remarry, either by the husband or family members or, lastly, by the State Wakf Board, which is a significant improvement over previous personal laws. By including this provision, they have protected the life and dignity of divorced women and given them the means to lead better lives in the future with the financial security provided by the legislation.

The second aspect of this provision is a little embarrassing because they are excluding the husband's liability, who is the primary offender in this case. It is his primary responsibility to take care of his wife and provide for her with a proper lifestyle, and if he fails to do so, it is also against the Quran. It is not appropriate to hold the family and Wakf Board responsible if the husband, considered the wife's better half, does not support her after the divorce.

So, there must be some necessary restriction on the liability to maintain the wife of the husband and the direct relatives of the husband because they have a direct interest in women after marriage, not the women's relatives she became the legal family member after marriage.

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