Provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986

Purpose and Objectives of the Act

This Act was enacted by the Indian Parliament in response to the Supreme Court's decision in the Shah Bano Case (1985), which granted maintenance to a divorced Muslim woman under Section 125 of the Criminal Procedure Code (CrPC). The decision led to nationwide protests from sections of the Muslim community who viewed it as interference with their personal law. The 1986 Act aimed to clarify and limit the maintenance rights of Muslim women after divorce under Islamic law.

Objectives:

• To protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands.
• To override the general provisions of CrPC and provide a special procedure for maintenance under Muslim personal law.
• To ensure a balance between religious personal laws and women’s welfare within the constitutional framework.

Definition of Divorcee

Under Section 2(a) of the Act, a "divorced woman" means a Muslim woman who was married according to Muslim law and has been divorced by, or has obtained divorce from, her husband in accordance with Islamic law.

Key Points:

• The divorce must be valid under Islamic law (talaq, khula, etc.).
• The definition includes women whose marriages were dissolved either by pronouncement or by judicial decree.
• This Act does not apply to women who remarry or convert to another religion after divorce.

Rights of a Divorced Muslim Woman

Provision of Fair and Reasonable Maintenance

Section 3 of the Act provides that a divorced Muslim woman is entitled to:

• “Reasonable and fair provision and maintenance” to be made and paid to her within the iddat period by her former husband.
• This includes not only maintenance for the iddat period (usually 3 months) but also a lump-sum provision for the future.
• The term “provision” has been interpreted broadly by courts to include future livelihood needs.

Manner of Payment

• All payments must be made during the iddat period.
• Section 3 also includes return of her dower (mahr), delivery of belongings, and payment of unpaid deferred dower.
• If the husband fails to pay, the woman may approach a Magistrate under Section 4 for appropriate orders.

Duty of the State towards Divorcee Women

• Section 4 enables a divorced woman who is unable to maintain herself after iddat to claim maintenance from:
  • Her relatives who would inherit her property on death (in order of priority).
  • If relatives are unable/unwilling – then from the Waqf Board established under the Wakf Act, 1995.
• This provision places the burden of social welfare on the community and state institutions rather than solely on the ex-husband.

Judicial Interpretations and Controversies

The Act has been subject to much debate regarding its constitutionality, interpretation, and implications for gender justice.

Notable Case Law:

• Danial Latifi v. Union of India (2001): The Supreme Court upheld the Act's validity but interpreted “reasonable and fair provision” to mean a one-time lump-sum payment that ensures her livelihood beyond the iddat period.
• Shabana Bano v. Imran Khan (2010): Ruled that even under the 1986 Act, a divorced woman can claim maintenance under Section 125 CrPC if she is unable to maintain herself, aligning the law with constitutional values.

Key Controversies:

• The Act was seen as a political compromise, perceived by some as regressive and discriminatory towards Muslim women.
• It created dual maintenance regimes – one under CrPC (for all women) and another under the 1986 Act (for Muslim women).
• Feminist critics argued that it diluted the benefits granted in the Shah Bano case.
• However, progressive interpretations by courts have restored many of those rights in spirit.

Thus, judicial intervention has softened the rigid application of the Act and aligned it with the ideals of gender justice and equality.