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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. q |
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