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MUSLIM WOMEN AND MAINTENANCE
By Asghar Ali Engineer
With the recent judgement of the Bombay High
Court the controversy about the maintenance of a Muslim divorcee has been
revived. Similar judgement by the Apex Court in mid-eighties popularly
known as the Shah Bano case had caused much turmoil in the Muslim
community. The Supreme court had allowed a Muslim divorcee Shah Bano
maintenance for life under the Cr.P.C. section 125 from her former
husband. The Muslim leadership objected to this judgement and maintained
that in Islam a divorcee can get maintenance only for the iddah period (
i.e. a period of waiting for three months after divorce is pronounced).
The Muslim leadership thought that the Supreme Court had no right to
interpret the holy Qur'an which only a Muslim 'alim can do.
There were massive demonstrations by the Muslims and the Rajiv Gandhi
Government was compelled to upturn the Supreme Court Judgement by passing
a new law known as the Muslim Women (Protection on Divorce) Act. The new
law drafted with the help of Muslim clergy was supposedly based on the
Qur'anic verse 2:241 which says that "And the divorced women, too,
shall have (a right to) maintenance in a goodly manner; this is a duty for
all who are conscious of God." Thus it is clear that the Holy Qur'an
requires Muslims who fear God to provide maintenance for their divorced
wives. The Muslim 'Ulama, however, argued that this maintenance could be
given only for the period of 'Iddah only i.e. for three months.
It is quite interesting to note that while the Indian 'Ulama and Muslim
leaders agitated against the Supreme Court judgement in mid-eighties and
forced the Government of India to adopt new legislation for Muslim women,
the Bangladesh High Court, in 1995 upheld the provision of Cr.P.C. 125 and
allowed maintenance for life to a Muslim divorcee. The Dhaka High Court,
in the case filed by Hefzur Rahman (Md) versus Shamsun Nahar Begum,
delivered the judgement on January 9th, 1995. The Judges Mohammad Gholam
Rabbani and Syed Aminul Islam maintained that "maintenance for wife -
a person after divorcing his wife is bound to maintain her on a reasonable
scale beyond the period of iddat for an indefinite period, that is to say,
till she loses the status of a divorcee by remarrying another
person."
The judges argued that the Qur'an is word of God and it is the word of God
which must prevail rather than the opinion of 'ulama. The Qur'an, the
judges said, is understandable by all human beings. In fifty-fourth sura
God repeats the same verse, "And We have made the Qur'an easy to
understand and remember..." They also said that according to the
verse 2:121 one must study the Qur'an which is in conformity with the
dynamic, progressive and universal character of Islam.
The learned judges of Dhaka High Court then took up the verse 2:241 and
said that there are three words of importance in this verse i.e.
mutallaqat which means divorcees, mataaoon which means house-hold stuff,
utensils, goods, chattels, provision, convenience and maaroof, meaning
known, recognised, honourable, good, befitting kindness. Then they go on
to argue, "So we find that a woman who is divorced is entitled to
house-hold stuff, utensils, goods, chattels, provision, convenience which
is known, recognised, honourable, good, befitting a kindness. Abdullah
Yousuf Ali is, therefore, correct in translating the expression 'mataaoon
bil maaroof' as 'maintenance should be provided on a reasonable
scale'".
Then the learned judges came to the conclusion, "Considering all the
aspects we finally hold that a person after divorcing his wife is bound to
maintain her on a reasonable scale beyond the period of iddat for an
indefinite period that is to say, till she loses the status of a divorcee
by remarrying another person." This is of course quite interesting
interpretation of the verse 2:241 and it seems to be quite in keeping with
the words of the verse. It is also interesting to note that there was no
resentment against this judgement by the `Ulama in Bangladesh though this
interpretation is not in keeping with the orthodox view.
The Bombay High Court judgement in case of the appeal filed by Jaitunbi (Zaitunbi)
Mubarak Shaikh against her former husband who divorced her before the
Muslim Women's (Protection on Divorce) Act came into force in early 1986:
The husband Mubarak Fakhruddin Shaikh sent her Rs.125/- and three months
maintenance at the rate of Rs.50/- per month by M.O. in the final
settlement of the dues. The wife had filed an application for maintenance
under Cr.P.C.125 and the magistrate fixed the amount of maintenance at Rs.
60/- P.M. by an order dated 26th June 1981. But on the 6th October 1986
the wife initiated the present proceedings by filing a maintenance
application no. 297 of 1986 under section 127 of the code for enhancement
of maintenance claiming that she was entitled to Rs.500/- per month.
Jaitunbi's husband in fact married second wife and drove her out. She came
from very poor family and after she was driven out she had nothing to fall
back upon and her parents -quite poor - were extremely reluctant to accept
her back in their home. The wife, therefore, maintained in her application
for maintenance that she was ill-treated by her husband and was driven out
of the matrimonial home, pursuant to which she made an application for
maintenance.
It was this application which was before the Bombay High Court and the
learned judges had to decide whether she could be awarded maintenance
beyond the period of iddat. As pointed out before the present Act passed
in 1986 was to forestall possibility of payment of maintenance to a
divorced wife beyond the period of iddat. The Indian 'Ulama had argued
then that the word mata' in the verse 2:241 of the Qur'an is about one
time provision and not month after month after divorce. They also argued
that marriage in Islam is a contract and once the contract is broken there
is no liability on husband to maintain her as she is free to re-marry as
soon as the period of iddat was over.
It was to counter the provision of section 125 of Cr.P.C. which ensures
maintenance for a divorced wife until she remarries or she dies that the
new Act was passed in 1986. The first judgement under this was given by
the Magistrate of Lucknow Rekha Dixit. She awarded Rs. 68,000 to the
divorced wife as a final settlement of all dues.
According to the Muslim Women's Act she is entitled to:
1. mehr (dower) amount;
2. mata' (i.e. one time provision depending on the financial status of the
husband and the standard of wife;
3. three months maintenance and
4. whatever gifts she had received from husband and other relatives at the
time of marriage.
However, the learned judges of the Bombay High Court appear to have gone
beyond this and what they have awarded to Jaitunbi is almost what she
would have been entitled to under the section 125 of Cr.P.C. The intention
of the 'Ulama and the Muslim leaders was to counter section 125 of Cr.P.C.
and to avoid permanent liability for the husband of a divorced wife. But
the learned judges of the Bombay High Court, have reached, through
elaborate arguments of their own, that under the Muslim Women's Act of
1986 she should be provided within the iddat period maintenance for life
(or until she remarries) on a fair and reasonable scale.
They have elaborately discussed in their judgement:
1. What is the intention of the legislators in enacting this Act;
2. What are the contents of the Act and
3. What are the meanings of the word 'maintenance' and 'provision'.
They labour in their argument to prove that the fair and reasonable
maintenance is in no way restricted to the iddat period alone. For this
they discuss the section 3, clause (a) of sub-section (1). They point out
that this clause (a) of subsection (1) of section 3 while dealing with the
rights of the children maintained by the wife, a reasonable and fair
provision is to be made for the children and maintenance is to be paid for
the children by former husband for a period of two years from the
respective dates of birth of such children. The words "for a period
of two years", specifically limit the liability of the husband
against whom application is made by the divorced woman. No such words,
however, are to be found in clause (a) that the reasonable and fair
provision is to be made only for the iddat period or for any specific
period. On the contrary, the obligation cast upon the husband in clause
(a) is (i) to make a reasonable and fair provision for the future of the
divorced wife and (ii) to pay maintenance within iddat period.
The judges then go on to argue that "In our view, the making of a
reasonable and fair provision has to be for the future of the divorced
wife and cannot be confined to the iddat period, which is very short
period as defined in sec. 2(b) of the Act. Such a provision must take into
account the future needs, including food, shelter, clothing, medical care
in old age etc. The amount of maintenance, however, to be paid under
clause (a) can be confined only till the iddat period expires having
regard to the scheme of Section 3 and 4 read together."
Then they go on to discuss the dictionary meaning of the words
'maintenance' and 'provision' and then conclude, "As far as making of
a reasonable and fair provision for the future of the divorced wife under
section 3(1)(a) of the Act, the liability is not restricted to the iddat
period having regard to the dictionary meaning of the word 'provision'
quoted in para above. In our view the dictionary meaning of the word
'provision' would make it clear that the Muslim husband is required to
visualise the future needs of his divorced wife and make a reasonable and
fair provision for the future needs of his wife."
This judgement naturally would be welcomed by women's organisations as a
path-breaking judgment and undoubtedly it is. But one must also say that
this does not seem to be the real intention of the legislators. The Act
was passed in view of the agitation by the Muslim leaders and the 'Ulama
and they were agitating precisely because the section 125 of Cr.P.C.
required the husband of a divorced wife to pay her maintenance for life or
until she remarries and these leaders and 'Ulama argued that in Islam it
is restricted to the iddat period only. However, the judges have so
interpreted the Act with the help of dictionary that it almost restores
what the Muslim leaders and 'Ulama had fought against.
Whatever the merit of the judgement it must be said that more and more
divorced Muslim women are going to the courts for redressal of their
grievances. It is time for the Muslim 'Ulama also to give a serious
thought to this problem. Whatever the jurists had thought during the
medieval ages cannot be treated as final and irrevocable. All Muslim
countries have brought new legislations in respect of women's problems
which are arising in modern times. We cannot shut our eyes to these
problems. Divorce, though, according to hadith, a most disliked of the
permissible acts by Allah, has been made very easy by the present law and
any man can throw his wife out by pronouncing word, talaq, three times.
This is causing serious problems to the divorced Muslim women.
Divorce should be made difficult and should also be made justiciable in
the proper spirit of Islam. The law of maintenance of a divorced wife also
will have to be reviewed to do justice to divorced Muslim women. Many
Muslim countries have already done it. Otherwise the courts will intervene
to do justice to the aggrieved Muslim women. After all it is these
aggrieved Muslim women who go to the courts for justice.
Source: http://www.dawoodi-bohras.com
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