Where is the appeasement?

The Muslim Women (Protection of Rights) Act 1986 revisited

MOOSA RAZA

The VHP and the RSS never tire of pointing to the passing of the Muslim Women (Protection of Rights on Divorce) Act, as a precedent to justify their refusal to accept the jurisdiction of the Supreme Court to adjudicate on matters of faith. The Act was passed with the perceived intention of making the Supreme Court decision in Shah Bano’s case ineffective. The implication, then, is that Parliament appeased the sentiments of the Muslim community by passing the Act of 1986 and that the Muslim community has therefore ‘benefited’. Ergo, Parliament should pass an Act to hand over the disputed site to Hindus and thereby ‘benefit’ it.

A look at the Shah Bano case and the fate of the Act is in order. It all began when Mohd Ahmad Khan, a provincial lawyer with a claimed monthly income of Rs 5,000 refused to pay to his aged, destitute wife, Shah Bano, a measly sum of Rs 179.20 awarded by the Madhya Pradesh High Court as monthly maintenance and appealed to the Supreme Court. He pleaded that as a Muslim he was governed by the Muslim Personal Law. The Court held then that Section 125 of the CrPC applies to all cases, irrespective of Muslim Personal Law. It also held that if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of CrPC. The judgement went on to make comments, obiter dicta, on the need to enact a uniform civil code.

Some sections of the Muslim religious leadership felt at that time that this judgement was an onslaught on the Muslim Personal Law. On their persuasion, Rajiv Gandhi enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. While introducing the Bill, the government declared that it was to provide that a ‘Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat, by her former husband and in case she maintains the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children’. The Bill intended to provide that where a Muslim divorced woman was unable to maintain herself after the iddat period, the magistrate was empowered to make her presumptive heirs or the local Wakf Board maintain her.

The provisions of the Act were challenged in the courts. Ultimately the matter reached the Supreme Court. The Court took note of the intention of Parliament that it ‘enacted the Act perhaps with the intention of making the decision in Shah Bano’s case ineffective’ and ‘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’. Then, the Supreme Court proceeded to set for itself the task of pronouncing upon the constitutional validity of the Act and relegated all other matters as and when they arise to be dealt with by the respective benches of the high court. Lo and behold, at the end of a long and erudite discussion, the Supreme Court came to the conclusion that the impugned Act has merely codified the original judgement of the Supreme Court, irrespective of the declared intentions of Parliament.

The Court arrived at this conclusion through a process of interpreting the words and phrases embedded in the provisions of the impugned law. While examining the provisions of the Act, the Court noted that ‘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 observed that the word ‘within’, embedded in Section 3 of the Act mandates that a divorced Muslim woman shall be entitled to ‘a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband’. The Court observed that the expressions used in that Section meant that maintenance has to be paid and a fair and reasonable provision should be made during the iddat period itself to take care of her future. With this interpretation, the Court found that ‘what could be granted earlier by a magistrate under Section 125 CrPC would now be granted under the Act itself’, though, as it observed, ‘it may look ironical that the enactment intended to reverse the decision in Shah Bano’s case actually codifies the very rationale contained therein’. Hence, the Court found that the Act remains operative and constitutionally valid.

The result of this interpretation is that the Muslim woman now enjoys far greater rights than her non-Muslim counterpart. The Magistrate can now order her former husband to pay her maintenance during the period of iddat, and order him to make a fair and reasonable provision for her future within the three months period of iddat itself. If the means of the husband are not adequate, the divorced Muslim woman can proceed against her relatives who must maintain her in proportion to the properties they inherit on her death.

Theoretically, at least, these are additional benefits which a Muslim divorcee enjoys over her non-Muslim sisters. However, the practicality of the good intention contained in the judgement deserves to be looked into. For instance, how is the Muslim husband expected to assess the divorced wife’s future and make a provision therefore within a three month period? On the basis of an actuarial life expectancy or some other calculation? In what form is this provision to be made?

The women who suffer most in a divorce come from the poorest section of Muslim society. In such cases, the husbands themselves have little learning and less compassion. If such lumpen elements feel threatened with having to make a fair and reasonable provision for their divorced wives, is there a danger that they would resort to more drastic means of getting out of a marriage than a mere divorce? One wonders whether the Muslim Personal Law Board will consider the implications of the judgement and undertake suitable reforms in the Muslim law of divorce. Even God does not transform a society until it transforms itself from within.

Wisely, the Muslim community has not reacted to the restoration of the status quo ante. They have ‘lost’ the ‘benefit’ of the Act, which was no benefit to begin with. But would the VHP and the RSS be justified in harping on this act of ‘appeasement’ which, as it happened, has been effectively thrown out by the Supreme Court? Are they justified in asking for a legislation to overturn a Supreme Court judgement when the Court has clearly observed that ‘societal problems of universal magnitude should be decided on consideration other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints’.

The writer is a former chief secretary, J&K