Progressive Dawoodi Bohras

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:

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.