From Shah Bano to Salma

The Act was enacted in 1986 in the wake of the Supreme Courts judgment in the Shah Bano case,whereby the apex court ruled that even a Muslim woman was entitled to receive alimony under the general provisions of the Criminal Procedure Code (CrPC),like anybody else. While the judgment was not the first granting a divorced Muslim woman maintenance under the CrPC,it was the first in which the Supreme Court referred to Muslim personal laws in detail. Many Muslim clerics saw the judgment as an encroachment on the right of Muslims to be governed by their personal laws. Following severe protests from various Muslim community leaders,the Rajiv Gandhi government got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament,with absolute majority. Rajiv drew much criticism over the move,with the Opposition calling it another act of appeasement towards the minority community by the Congress.

What were the salient features of the Act?

The Act entitles a divorced Muslim woman to four rights under its specific provisions:

(i) Right to maintenance during the period of iddat (the stipulated waiting period after the divorce in which a woman cannot remarry); (ii) Right to fair and reasonable provisions for her entire life; (iii) Right to receive alimony for the child till two years from divorce; (iv) Right to receive maintenance from the State Wakf Board in some exceptional circumstances.

How was the Act perceived?

Diluting the Supreme Court judgment,the most controversial provision of the Act was that it allowed maintenance to a divorced woman only during the period of iddat,or till 90 days after the divorce,according to the provisions of Islamic law. This was in stark contrast to Section 125 of the CrPC the general provision for maintenance of wives,children and parents that applies to everyone irrespective of religion.

How has the Act been interpreted by the Supreme Court?

The apex court has interpreted the provisions of the Act more liberally. In Daniel Latifi vs Union of India,2001,the Supreme Court upheld the Act in so far as it confined the time period of maintenance to the iddat period. But it also held that the quantum of maintenance must be reasonable and fair and therefore last her a lifetime. In effect,the judgment does a balancing act between the effect of the Shah Bano judgment and the words of the Muslim Women (Protection of Rights on Divorce) Act.

Why is the Act not frequently used?

Despite its unique feature of no ceiling on quantum of maintenance,the statute is sparingly used because of the lack of its knowledge even among lawyers. The legal fraternity generally uses the CrPC provision while moving maintenance petitions,considering it handy.