Trace the history from the Shah Bano judgment which led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and critically analyze the provisions of this legislation. Discuss the issue in relation to the constitutionality of this Act, as raised before the Supreme Court in Danial Latifi and Another v. Union of India, AIR 2001 SC 3958

Question: Trace the history from the Shah Bano judgment which led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and critically analyze the provisions of this legislation. Discuss the issue in relation to the constitutionality of this Act, as raised before the Supreme Court in Danial Latifi and Another v. Union of India, AIR 2001 SC 3958. [HJS 2013]

Find the question and answer of Muslim Law only on Legal Bites. [Trace the history from the Shah Bano judgment which led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and critically analyze the provisions of this legislation. Discuss the issue in relation to the constitutionality of this Act, as raised before the Supreme Court in Danial Latifi and Another v. Union of India, AIR 2001 SC 3958]

Answer

The major change in Muslim Personal Law happened after the infamous Mohd. 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. This act actually deprived Muslim women of the right of maintenance under Section 125 of the Criminal Procedure Code.

The Act is 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 such community, cannot be held discriminatory.

In Daniel Latifi's case, the court observed the following explanation of the proposition:

"The word 'provision' indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the Iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filling an application before the Magistrate as provided in Section 3(3) but nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the Iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time."

The Court further stated that if a woman doesn't remarry she has the recourse under section 4 of the Act against her relatives in a proportion of the properties they shall inherit after her death. If the relatives are not in a position, the judicial body can order the Wakf Board to pay for the maintenance of the woman.

Section 3 of the Act deals with the Mahr or other properties of a Muslim woman to be given to her at the time of divorce. Sub-clause (a) of clause (1) of Section 3 deals with a reasonable and fair provision and maintenance within the 'Iddat period' by her former husband. Prima facie it seems that under this Section, parliament had not intended to impose an obligation on the husband after the Iddat period.

Fortunately, the Supreme Court in Danial Latifi's case clarified the issue that

"The contention that the expression "within" in Section 3(1)(a) should be read as "during" or "for" cannot be accepted because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that Act would mean that on or before the expiration of Iddat period, the husband is bound to make and pay maintenance to the wife and if fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the Iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time."

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