Court: Supreme Court of India.
Case Type: Writ Petition (Civil).
Case No.: 868 of 1986.
Citation: (2001) 7 SCC 740.
Date of Judgement: 28/09/2001.
Petitioner: Danial Latifi and another.
Respondent: The Union of India.
Bench:
- Justice G.B. Pattnaik.
- Justice S. Rajendra Babu.
- Justice D.P. Mohapatra.
- Justice Doraiswamy Raju.
- Justice Shivraj V. Patil.
Statutes Referred:
- Muslim Women (Protection of Rights on Divorce) Act, 1986. (hereinafter referred to as ‘the Act)
- The Code of Criminal Procedure.
- The Constitution of India
Cases Referred:
- Mohd. Ahmed Khan V Shah Bano Begam & Ors. (1985) 2 SCC 556.
- Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545.
- Maneka Gandhi v. Union of India, 1978 (1) SCC 248.
Facts:
- The Muslim Women (Protection of Rights on Divorce) Act, 1985 was enacted to undo the judgement in Mohd. Ahmed Khan Vs Shah Bano Begam and Ors.
- In Shah Bano Begam (supra), an ill and elderly wife had been thrown out of the husband’s residence after 43 years of marriage. The husband paid maintenance of Rs. 200/- for about two years after that.
- Once the payments stopped, the wife moved to the Magistrate under Section 125 of the CrPC. The Magistrate ordered the husband to pay an amount of Rs. 25/- per month to the wife. This amount was later increased to Rs. 179/- per month by the Madhya Pradesh High Court.
- The husband appealed to the Supreme Court against this order of the High Court.
- The Court held that mehr is a sum payable on divorce within the meaning of Section 127(3) (b) of the CrPC. It also held that mehr is a sum that cannot ipso facto absolve the husband’s liability.
- The Court held that divorced women were entitled to apply for maintenance orders against their former husbands under Section 125 of the CrPC, and such applications were not barred by Section 127(3) (b) of the CrPC.
- The husband contended that he had paid the wife the entire sum, which was payable at the time of divorce, as per the Muslim Law. On the other hand, the wife contended that he husband had not paid the entire amount; in that, he had paid the mahr and iddat maintenance but not the mata, i.e. provision or maintenance mentioned in the Holy Quran, Chapter 2, Sura.
- After referring to several texts on Muslim Law, the Court held that a divorced wife’s right to maintenance ceased on the expiration of the iddat period. But the Court proceeded to observe that the general provisions reflected in those texts and statements did not contain any provision for exceptional cases where the wife was unable to maintain herself.
- The Court felt that it would be unjust to extend the scope of the texts and statements to women who were unable to maintain themselves.
- The Court held that the Aiyats (the Holy Quran, Chapter 2, Suras 241-242) left no doubt that the Holy Quran imposed an obligation on the Muslim husband to provide for the maintenance of the divorced wife.
- There was a massive fallout on the Supreme Court’s judgement following which, to render the judgement in Shah Bano Begam (supra) ineffective, the Parliament enacted the Muslim Women (Protection of Rights of Divorce) Acr, 1986.
- Some important provisions of the Act were:
Section 3 of the Act opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled to -a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband;
b) where she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for two years from the respective dates of birth of such children;
c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time after that according to Muslim Law; and
d) all the properties given to her by her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.
· If the fair and reasonable payment in the Act is not paid to the woman, then she has the right to move to the local Magistrate to ensure that the same is paid.
- Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act or any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order. If any of the relatives do not have the necessary means to pay the same, the Magistrate may order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. Where a divorced woman is unable to maintain herself, and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them has 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 relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such maintenance as determined by him as the case may be.
- Section 5 of the Act provides for the option to be governed by the provisions of Sections 125 to 128 CrPC. It lays down that if, on the date of the first hearing of the application under Section 3(2), 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 governed by the provisions of Sections 125 to 128 CrPC. File such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.
Issue:
- Is the Muslim Women (Protection of Rights on Divorce) Act, 1986 constitutionally valid?
The contention by the Petitioner:
- A Muslim marriage is a contract. An element is necessary by way of mahr or dower, and an absence of consideration will discharge the marriage.
- Section 125 of the CrPC was enacted as a matter of public policy.
- Section 125 of the CrPC is available to women of all religions, and the exclusion of only Muslim women from the protection of Section 125 of the CrPC would lead to discrimination among women. Thus there is a violation of not only equality before the law but also of equal protections by laws and the inherent infringement of Article 21 of the Constitution.
- If the object of Section 125 of the CrPC is to prevent vagrancy and destitution of divorced women, then Muslim women cannot be excluded from its scope.
- The Act undermines the secular character of the Constitution.
- The Act must be held discriminatory and violative to Articles 14 and 21 of the Constitution.
- The remedy under section 4 of the Act is illusionary. A woman cannot get sustenance from parties that were stranger to the relationship, which ended in a divorce. The Wakf Boards do not have the money to support divorced women since they are usually starved of funds.
- The Act unreasonably, oppressively and unequally operates against only one class of women.
- While Section 5 of the Act makes the availability and applicability of the remedy as provided by Section 125 CrPC dependent upon the whim, caprice, choice and option of the husband of the Muslim divorcee who in the first place is sought to be excluded from the ambit of Section 3 of the post-iddat period and, therefore, submitted that this provision would have to be held unconstitutional.
The contention by the Respondent:
- Personal law is a legitimate basis for discrimination and therefore is not violative of Section 14 of the Constitution.
- The policy of Section 125 of the CrPC. is not to create a right to maintenance by discarding personal law.
- In the Shah Bano case, the Court has wrongly interpreted unfamiliar language concerning religious tenets.
- The purpose of the Act is not to punish the husband but to avoid vagrancy, and Section 4 of the Act is good enough to take care of such a situation.
- This Court’s interpretation of the Arabic word ‘Mata’ in the Shah Bano case is wrong.
- The entire object of enacting the Act was to nullify the effect of the Shah Bano case to exclude the application of Section 125 of the CrPC.
- The interpretations of the provisions of the Act must be made keeping in mind the social ethos of Muslims and the personal laws of the community.
Obiter Dicta:
- There is a great difference in the financial utility of a man and a woman.
- The women in our society are dependent on the men as the men have a dominant role, both financially and socially.
- A woman’s contribution in a marriage is very difficult to measure in monetary terms.
- The Act applies to women who were married according to the Muslim personal law and who were divorced according to the Muslim personal law. It does not apply to women who were married according to the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved according to the Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954.
- The legal enforceability of the Muslim woman’s right to receive compensation and maintenance under Section 3(1) (a) of the Act depends on the husband having the sufficient means to do so. This is against the principles of Muslim Law.
- 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.
- The gist of Section 3 of the Act is that the divorced woman is entitled to a fair and reasonable provision and maintenance maid to her within the period of iddat by her former husband.
- The contention put forth that mata is something that is only a one-time payment to the divorced wife and does not include a continuous payment supports the view that the provision mentioned in Section 3(1) (a) of the Act includes mata as a distinct right of a divorced woman, in addition to the mahr and maintenance for the iddat period.
- The object of Section 125 of the CrPC is to prevent the vagrancy of an individual by directing the ones who have the means to pay for those who don’t have them. And if this is achieved by a scheme provided in the provisions of the Act, which is equally or more beneficial compared to the interpretation of Section 125 of the CrPC, the argument of the petitioners loses its significance.
- The starting point regarding the personal law of Muslims related to the rights of divorced women should be the Shah Bano case and not the texts or any other material.
- The language used in the Act makes it clear that a fair and reasonable provision is to be made, and the maintenance is to be paid.
- At the time of divorce, the Muslim husband is required to predict the future needs and provide for the same. These may include her residence, her food, her clothes and other articles.
- The Parliament has nowhere provided that the reasonable and fair provision and maintenance are limited only for the iddat period and not beyond that.
- A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
- Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
Judgement:
- The Act could not be held to be unconstitutional.
- The provisions of the Act did not offend Article 14, 15, and 21 of the Constitution of India.
Rationale:
- Upon marriage, a woman usually gives up on her avocations and job prospects and devoted herself solely to look after her husband, his family, and the children they might have in the future.
- The wife’s contribution in marriage often emanates out of her sacrificing her personal prospects and ambitions.
- The Act follows the Muslim Law in determining who pays the compensation and how much compensation must be paid.
- The husband’s liability to pay maintenance during the iddat period is unconditional, and it cannot be dependent on the husband’s financial situation.
- What was earlier being granted by the Magistrate under Section 125 of the Act was now being granted under the very Act itself.
- The day on which the Act came into force, the law applicable to divorced Muslim women was that as was declared by the Court in the Shah Bano case.
- A reasonable and fair provision would be in reference to the needs of the divorced woman, the financial situation of the husband and the standard of living enjoyed during the marriage.
- The husband is required to make the payment to his ex-wife on or before the expiration of the iddat period.
Conclusion:
- The Muslim Women (Protection of Rights on Divorce) Act, 1986 codifies what was stated in the Shah Bano Case.