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Supreme court judgement on maintenance
By M H Lakdawala, Mumbai

A recent Supreme Court judgment upheld the constitutional validity of the 15-year-old Muslim Women (Protection of Rights on Divorce) Act, increasing liabilities for husbands who seek divorce. The Court ruled that the liability of a Muslim husband to maintain his divorced wife is not confined to iddat period under the Act.

Under the Muslim law, the period is to ascertain whether the divorced woman is pregnant and to fix liability for the unborn child. In Shah Bano case, the Apex Court had held that a Muslim woman, who was unable to maintain herself after the iddat period, was not barred from seeking maintenance under section 125 CrPC applicable to all women irrespective of their religious affiliations.

It had also ruled that there was no conflict between the section and the Muslim Personal Law on the question of a Muslim husband's obligation to maintain his divorced wife. Subsequently, the Rajiv Gandhi Government brought the legislation to bar Muslim women from seeking relief under 125 CrPC for maintenance. A five-judge Constitution Bench headed by Justice G B Patanaik in a judgment last month said a Muslim husband's liability to maintain his divorced wife does not end after the iddat period.

The Bench said the husband is liable to make reasonable and fair provision to secure the future of his divorced wife which obviously includes her maintenance as well." The husband must make such a reasonable and fair provision extending beyond the iddat period within the iddat period in terms of section 3 (1) (a) of the Act. Section 3 (1) (a) said:" A reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband." The judgment came on a bunch of petitions challenging the Act's validity. The petitioners contended that the Act is un-Islamic and unconstitutional having "potential of suffocating the Muslim women." They argued that the Act was a discriminatory piece of legislation, which barred Muslim women from seeking maintenance under 125 CrPC from the husband.

The Bench said a divorced woman who has not remarried and is unable to maintain herself after iddat period could claim maintenance from relatives in proportion to the properties, which they inherit on her death. If any of the relatives being unable to pay her maintenance allowance, a Magistrate may direct the State Wakf Board to pay such maintenance, the Court said.

As usual AIMPLB reacted to the judgment and called for the meeting of its legal committee to decide the future course of action. How long the board is going to concentrate only on the legal battle although forced on it? All the resolutions, pertaining to work at the grass root level and to launch social reform movement in the community, passed in various sessions still remain on paper. Just concentrating on legal front is meaning less as such judgments would keep on coming unless the rights given by Islam to women are implemented at the grass root level. The Muslim Women in India are a heterogeneous group and have their own divisions, classes, and their own specific issues and problems. Ironically the community is not only oblivious of the atrocities on the women but also is apprehensive of any organisation or individuals espousing their cause.

Ironically the various fora of the community have been focusing on the religious issues. Social, economical, and political issues pertaining to Muslim women are often been analysed and discussed through the religion angle only that get often converted into an ideological debate.
The correct analysis of the problem faced by the Muslim women still elude us. What are the real issues? purdah, divorce, polygamy or education, basic rights or poverty. Advocate Nilofer Akhter, activist and a personal law specialist, says that the board had failed to realize how serious is the issue of the exploitation of Muslim women. "In my day to day practice I come across several cases of Muslim women, who are denied their mehr and inheritance" She said. " The community has developed no mechanism nor any platform through which women can fight for their legitimate rights. Time and again Muslim society has failed to give women their rights given to them by Islam. The need is for women to get more organized". .
Advocate A. S. Uraize of Maharashtra Muslim Advocate Forum (MMAF) believes that the recent spate of court judgement on Muslim women divorce cases is the result of all round confusion within the community." From codification of Muslim personal law to social reform, it needs the combined efforts of all section of the community" he said." Such reforms in the marriage laws are enforceable in Bangladesh, Brunei, Syria, Pakistan, Morocco, Malaysia, Jordan and Iran".
Advocate Nilofer Akhter, believes that" Ignorance of Islamic law and its principle is the bane of Muslim women and reason for not getting their legitimate rights." "The religious book Qur'an is in Arabic." She said. Muslim women read Qur'an without understanding the meaning. Non-availability of books on women rights or unaffordable to buy available translation of Holy Qur'an and other books on the subject lead to ignorance. Neither such library is available to them. They are unable to find good woman preachers who could enlighten them on their own religious principles."

The male dominated AIMPLB had failed time and again to have any concrete solutions to the problems confronting Muslim women. Be it, the issues of triple talaq, mehr, polygamy or inheritance. Even the promise to give greater representation to women in the board has never materialized.

When women groups themselves suggest few measures such as the Nikahnama, to solve their problem why does the board act as a hindrance? France based eminent Islamic scholar Dr. Muhammad Hamidullah, in his book, Introduction to Islam, writes, "at the time of marriage, woman may demand the acceptance and insertion, in the document of the nuptial contract, of the clause that her husband would practice monogamy. Such a condition is as valid as any other condition."
Advocate Yusuf Muchala, legal advisor and member of the AIMPLB while concurring said, in our society very few women are socially active. " Unless Muslim women demand their legitimate rights they will continue to suffer. Women themselves are not demanding their rights and male ego would not allow it to concede their demands. Women have to fight their own battle."
Farida Lambay vice principal of Nimala Niketan college of social sciences opines that various Muslim forums act as a fire fighter. " The tendency is to react instead of taking constructive and concrete steps to prevent social discrimination against women." Advocate Uraize, said the reason why the social reform movement had failed to take off is the yawning gulf between Ulama and Muslim intelligentsia. " We had to face many legal complexities while fighting for the cause of Muslim women which ulema are not aware of. There is no communication channel between the two, which leads to the misunderstanding between them, he said. Educating Muslim women is the only way to end their problems and giving them equal status as per the Sharia'h can play an important role in this regard.
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