The Muslim Women (Protection of Rights on Divorce) Act is a Central legislation enacted in 1986 to safeguard the rights of divorced Muslim women who have been separated from their husband either by themselves or by the husband. The Act was passed to invalidate the decision of the Supreme Court in Mohammed Ahmed Khan v. Shah Bano Begum, in which the Court observed that where a Muslim woman is not remarried and cannot maintain herself, she can claim maintenance from her former husband as long as she remains unmarried.
According to the Act, a ‘divorced woman’ is a Muslim woman married and divorced from her husband under the Muslim Law. The former husband shall pay the divorced woman rational and fair maintenance during the iddat period. Where the maintenance of children is borne by the woman, the husband is under an obligation to pay maintenance to the children for a period of two years from the child’s date of birth. The woman is also entitled to receive a sum equivalent to mahr agreed during or after the marriage, all properties given to her by her parents or relatives etc. If the husband fails to comply with the provisions of the Act, the woman shall file an application before the magistrate for an order to compel the husband to provide her maintenance, mahr, property and such other allowances specified by the Act.
The magistrate shall examine the application and such other evidences and make an order directing the husband to pay the woman reasonable requirements and maintenance at the term of iddat. Where the husband again fails to pay the amount, the magistrate shall issue a warrant to pay fine in a manner prescribed under the Criminal Procedure Code and imprisonment for a term of one year or till the amount is paid. After the iddat period if the woman is unable to maintain herself, the magistrate shall make an order directing her relatives who would succeed to her property after her death, to pay maintenance equivalent to the proportion of the property inherited.
The Act further provides that where the divorced woman has children who are able to pay maintenance, the Court shall order such children to provide maintenance to the divorced woman. But if the children are incapable to pay the amount, the Court shall order the parents of the woman to maintain her. If the parents or relatives do not have the means to maintain her and their properties are insufficient the Court shall order such other relatives who are competent to provide maintenance to the divorced woman to do as directed.
The proviso to the Act provides that the magistrate is of the opinion that the parents or relatives are not competent enough to maintain the woman, the Court shall order the State Wakf Board, within the local limits where the woman resides, to pay the sum for her maintenance. If the husband and wife files an affidavit to the Court that they are likely to be governed by the provisions of the Criminal Procedure Code, 1973, the Court shall conduct the proceedings and dispose the case accordingly. The Central Government shall have power to formulate rules dealing with the format of affidavit, procedures and methods to be pursued by the Magistrate and any other matter connected therewith.
The legislation has been subject to criticism from its inception that the fundamental purpose of the Act is to save men and not the women. Moreover, the Act has been formulated before twenty seven years and till now no measures have been taken to amend the controversial provisions and protect the vulnerable section of Indian society. It is also argued that the Act is not in conformity with the provisions of the Constitution and it would not serve the purpose enunciated in the Preamble.