''Payment of maintenance not confined to `iddat' period''

By T. Padmanabha Rao

NEW DELHI, SEPT. 28. A Constitution Bench of the Supreme Court, while unanimously upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, has ruled that ``a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well'' and ``such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.''

Mr. Justice S. Rajendra Babu was delivering the judgment in a large group of connected writ petitions and appeals.

On close analysis and interpretation of the crucial provisions of the 1986 Act, the Bench which included Mr. Justice G. B. Pattanaik, Mr. Justice D. P. Mohapatra, Mr. Justice Doraiswamy Raju and Mr. Justice Shivraj V. Patil, gave the following conclusions: ``Liability of a Muslim husband to his `divorced wife' arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.''

``A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents'' and ``if any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance'' and ``the provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.'' (Articles 14 and 15 are `equality clauses' while Article 21 deals with right to life and liberty which was interpreted as right to live with dignity).

The 1986 Act was enacted with the intention of making the Apex Court's decision in Shah Bano's case (1985) ineffective, in the wake of a ``big uproar'' after Shah Bano's case.

The apex court, in Shah Bano's case held that Muslim law limits the husband's liability to provide for maintenance of the divorced wife to the period of `iddat', but it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure (CrPC) 1973 and, therefore, it cannot be said that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance beyond the period of iddat to his divorced wife, who is unable to maintain herself.

``A careful reading of the provisions of the Act would indicate that a divorced (Muslim) woman is entitled to a reasonable and fair provision for maintenance,'' the Bench said adding ``that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word `provision' indicates that something is provided in advance for meeting some needs.''

``In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs,'' and ``reasonable and fair provision may include provision for her residence, her food, her clothes and other articles,'' the Bench noted.

``If he (husband) fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) of the Act but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the `iddat period' and not beyond it,'' the Bench pointed out and added that ``it would extend to the whole life of the divorced wife unless she gets married for a second time.'' ``In Shah Bano's case this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for `maintenance' to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman,'' the Bench said. A plea on behalf of the Muslim organisations who were interveners before the Court was that under the Act, vagrancy or destitution was sought to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance through others.

``Before the 1986 Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 CrPC until she may remarry and such a right, if deprived, would not be reasonable, just and fair,'' the Bench observed. Adverting to the concerned decisions of certain High Courts, including those of Bombay, Gujarat, Kerala and Punjab, the Bench said ``thus preponderance of judicial opinion is in favour of what we (the Bench) have concluded in the interpretation of Section 3 of the Act''. ``The decisions of those High Courts that are contrary to our decision stand overruled,'' the Bench held.

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