SHAH BANO, THE MUSLIM WOMEN (PROTECTION OF RIGHTS
ON DIVORCE) ACT AND MUSLIM WOMAN'S RIGHT
TO MATAA: BANGLADESH SHOWS WAY OUT
OF IMBROGLIO
I Cr. P.C. and divorced women
THE SECTIONS of the Code of Criminal Procedure empowering the magistrate
to order, in summary proceedings, an individual possessed of means to maintain
his indigent wife and children, were designed, according to their architect, Sir
James Fitz James Stephen, as "a mode of preventing vagrancy or at least of
preventing its consequences" {e.g., crime and prostitution). Given that the terms
of section 488 of the 1898 Code (and its predecessors) only encompassed married
women,1 and that Muslim law as popularly interpreted recognized neither postdivorce alimony nor a division of matrimonial assets, the Muslim husband could
easily evade the magistrate's jurisdiction under the G.P.C. .by the simple expedient of unilaterally, extra-judicially, and instantly divorcing his wife. The divorced
woman was often left completely destitute.
When in the early 1970s India undertook the task of replacing the old Criminal
Procedure Code 1898, with a new and up-dated statute of the same name, women's
organisations in general and Muslim women in particular organised petitions to
bring to the attention of Parliament the necessity of altering the terms of the old
section 488 of Chapter XXXVI in order to offer protection and succour to divorced
women. They succeeded in convincing the Joint Parliamentary Committee which
was considering the Bill and which recommended in their Report as follows:
The benefit of the provisions [concerning the magistrate's summary
jurisdiction to order payment of maintenance] should be extended to a
woman who has been divorced from her husband, so long as she has not
remarried after the divorce. The Committee's attention was drawn to
some instances in which, after a wife filed a petition under this section
on the ground of neglect ro refusal on the part of her husband to maintain
her, the unscrupulous husband frustrated her object by divorcing her
forthwith, thereby compelling the magistrate to dismiss the petition. Such
divorce can be made easily under the personal laws applicable to some of
the communities in India. This causes special hardship to the poorer
sectors of the community, who become helpless. The amendments made
by the Committee are aimed at securing social justice to women in our
society belonging to the poorer classes.2
1. See, 488 (I) and (2) of Code of 1898.
2. Quoted in Tajinder Kaur v. Balhir Singh, 1978 Cri, L.J. 604 at 606-7 (P.& H.) (Tiwana, J.).
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An amendment was introduced by the committee in section 125 of the Bill
(the section equivalent to section 488 of the 1898 Code) which added a new
definitional clause defining the word "wife" as used in the chapter concerning
maintenance. "Wife" declared the Bill as thus amended, "includes a woman who
has been divorced by or has obtained a divorce from her husband, and has not
remarried."Under this provision, the magistrate would be authorised to order an
ex-husband to pay maintenance (not exceeding Rs. 500 a month) to his impoverished ex-wife who was unable to maintain herself; the extra-judicial, unilateral
talaq would no longer suffice to exonerate a Muslim husband from his responsibilities. 3
The proposed change in section 125 of the new Code, although opposed by
Muslim members, was accepted by both Houses of Parliament. The Muslim
spokesmen took their objections to the Prime Minister. Curiously, and in a
procedure totally unprecedented, the Code of Criminal Procedure was, in December 1973, brought again before Parliament which had already passed it, in order
that the government might propose an amendment of section 127, which deals
with alterations in a maintenance order. The relevant portion of the new clause
proposed to be added to this section read;
127 ...
(3) Where any order has been made under section 125 in favour of a
woman who has been divorced by, of has obtained a divorce from, her
husband, the Magistrate shall, if he is satisfied that:(b) the woman has been divorced by her husband and that she has
received, whether before or after the date of the said [maintenance] order,
the whole of the sum which, under any customary or personal law
applicable to the parties, was payable on such divorce, cancel such order, (/)
in the case where such sum was paid before such order, from the
date on which such order was made.
(//) in any other case, from the date of expiry of the period, if any, for
which maintenance has been actually paid by the husband of the
woman;
(c) the woman has obtained a divorce from her husband and that she
voluntarily surrendered her rights to maintenance after her divorce,
cancel the order from the date thereof.
3. Although after the Hindu Marriage Act of 1955, the Hindu woman divorced injudicial proceedings could be awarded maintenance (alimony) by the matrimonial court, the magistrate's jurisdiction
under the new section 125 of the Criminal Procedure Code would assist the Hindu woman whose
husband did not comply with the civil court's decree and defaulted on his alimony payments. It also
could assist Hindu women of those castes which prior to 1955 had customs of extra-judicial divorce,
which customs were explicitly recognized by the Hindu Marriage Act.
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There can be little doubt that clause 127(3)(6) was designed to exclude
Muslim divorcees who had been paid their mahr or dower ("the sum which under
any customary or personal law applicable to the parties, was payable on divorce")
from the minimal protection afforded to divorced women of all other communities. There was obviously a reluctance to make the clause more specific and to
identify Muslim women by reference to their religion, since such express wording
would render the clause liable to impeachment on constitutional grounds, as
violative of article 144 and/or article 15(1)5 of the Indian Constitution.
Jyotirmoy Basu6 opposed this amendment on behalf of "millions of women,
specially Muslim women" and cited petitions received from Muslim women and
the Delhi City Women's Association. In defence of the provisions of section 125,
which as they applied to Muslim women appeared to be negated by the amendment
proposed to section 127, he invoked sura II, verse 241 of the Quran:- "For
divorced women maintenance should be provided on a reasonable scale." The
new section 125, with the expanded definition of the term "wife", he suggested,
did no more than to give to Muslim women "the benefit of this clear mandate of
the Holy Quran."7 Pressed by Basu to reply to his objections to the proposed
amendment of section 127, the minister responded by stating that if Basu's
propositions held good, "this provision [i.e., section 127(3)(6)] may not come into
operation [to negate the rights of Muslim women under section 125]." 8
A short and powerful, and in a sense prophetic, paper appears to pick up the
debate from the point where it was left by the Lok Sabha exchange between
Jyotirmoy Basu and the government minister.9 In order to apply section 127(3)(6)
to the case of a Muslim divorcee, Abdullah asserted with calm logic, it is
necessary to ascertain exactly what constituted the "sum ... under ... personal law
... payable on ... divorce" by a Muslim husband to his former wife. The phrase
used in section 127(3)(6) cannot refer to mahr, since this is payable on marriage;
it is only to suit the convenience of the parties that it is often arranged that
payment of a portion of the mahr shall be deferred until some later date or until
dissolution of the marriage.
Similarly, the terms of section 127(3)(Z>) cannot include maintenance for the
period of iddah, the liability for which does not arise by reason of the divorce. The
obligation to maintain the wife during iddah is an extension of the husband's
obligation to maintain his wife during the marriage. Iddah does not necessarily
fall to be observed after the divorce; when it precedes the actual dissolution of the
marriage, the spouses continue as husband and wife throughout the iddah period
4. Art, 14 reads: "The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India."
5. Art, 15 prates: "(1) The State shall not discriminate against any citizen on the grounds only of
religion, race, caste, sex, place of birth or any of them ... (3) Nothing in this Article shall prevent the
State from making any special provision for women and children".
6. A Bengali parliamentarian representing the left (Marxist) opposition; at the time of the Muslim
Women Act controversy a decade later he was Chief Minister of Bengal.
7. L.S.D. cols. 312-3 (11 Dec. 197^
8./rf; col. 317.
9. T.M. Abdullah, "Muslim Husband's Liability under Ss. 125 & 127, Cr. P.C;" (1977) K.l T. 18,
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and maintenance is incumbent upon the husband because of the subsistence of the
marriage. When it follows the divorce, the divorced wife is prohibited from
remarrying, not because of the divorce but because of the (now dissolved)
marriage and the interests of the (former) husband in ascertaining whether the
woman may be pregnant by him. The divorced woman's inability to remarry
during the post-divorce iddah derives from the marriage; the ex-husband's obligation to maintain her during this period likewise is an extension of his obligation
to maintain her during coverture. If the woman is pregnant, it will extend until she
is delivered; the former husband's obligation to maintain continues throughout the
pregnancy, not because of the divorce but because of the father's liability for the
maintenance of his child.
So, the mahr and the iddah maintenance are out of account for relief under
127 Cr. P.C. What remains is the command for making a reasonable honourable
provision for the divorced wife contained in chapter 2, verse 241 of the Holy
Quran ...
The reasonable or honourable provision for the divorced wife may take the
form of a lump sum allowance or [be paid] by instalments.10
Consequently, as the minister had remarked in the course of the exchange with
Jyotirmoy Basu, if the relevant reference is Quran, 11:241, the terms of section
127(3)(Z?) "may not come into operation" to negate the rights conferred upon a
Muslim divorcee by section 125. Ttie husband could only avoid liability for a
maintenance order under that section by voluntarily making "reasonable or
honourable provision" for his divorced wife by means of lump sum payment or
an arrangement for payment of regular alimony, in addition to payment of any
outstanding mahr owed the woman and maintenance for the iddah period.
II Cr. P.C. : courts and divorced Muslim women
Although it might have appeared - as it clearly did to Jyotirmoy Basu and,
apparently, to the Muslim spokesmen opposing the new definition of "wife" in
section 125 and supporting the amendment of section 127 - that the effect of the
revised section 127(3)(Z>) would be to exempt Muslims from the provisions of
section 125 as they applied to divorced wives once payment of mahr outstanding
on termination of the marriage and maintenance for the period of iddah were
proved, the matter did not end here. It is the duty of courts to interpret the meaning
and scope of legislation and the lurking ambiguity in the terms of the statute
virtually guaranteed that the question would arise in litigation.
The controversies arose when the husband had paid the woman's mahr and
claimed exemption from a maintenance order on the basis of section 127(3)(6).
The central question was thus whether mahr constituted a sum "under any
customary or personal law applicable to the parties payable on divorce", remittance of which (regardless of how minuscule the amount) would absolve a Muslim
husband from his liability, and negate the rights of a Muslim divorcee, under
section 125. Not surprisingly, the various High Courts arrived at different and
10. The aurar has expanded a little on Abdullah's arguments in the summary above, it was written
long before the Shah Bano and Muslim Women Act controversies (for which see below).
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incompatible conclusions when faced with the necessity of construing the provisions of the new Code in regard to maintenance applications by divorced Muslim
women. 11
The question invevitably reached the Supreme Court of India. The Bai
Tahiran and Fuzlunbi cases, 13 came us before three-member Benches of the
Supreme Court in 1979 and 1980. In each case the unanimous decision of the
Bench was delivered by Justice Krishna Iyer. He invoked articles 15(3), 37, 38,
and 39 of the Indian Constitution in interpreting the relevant provisions of the new
Code. It was observed:
Art. 15(3) has compelling, compassionate relevance in the context of S.
125 and the benefit of doubt, if any, in statutory interpretation belongs to
the ill-used wife and the derelict divorcee .... Protection against moral and
material abandonment manifest in Art. 39 is part of social and economic
justice, specified in Art. 38, fulfilment of which is fundamental to the
governance of the country (Art. 37). 14
The ipso facto arguments based on section 127(3)(Z>) were emphatically
rejected and the circumstances in which this section could be utilised to defeat,
cancel, or modify a maintenance application or order were strictly defined:
There must be a rational relation between the sum so paid and its potential
as provision for maintenance ... [N]o husband can claim under Section
127(3)(b) absolution from his obligation under S. 125 towards a divorced
wife excpet on proof of payment of a sum stipulated by customary or
personal law whose quantum is more or less sufficient to do duty for
maintenance allowance}5
Thus, payment of mahr per se could not indemnify a Muslim husband from
further liability under section 125. The amount paid as mahr had to be considered;
it was necessary that there be some rational correlation between the sum payable
"under customary or personal law" and what would be payable under a maintenance order before the husband could claim immunity from an order under section
125. Although payment of mahr was a matter to be taken into consideration, the
court would look behind the "ritual exercise" of payment of the amount actually
paid, the means of the husband, and the needs of the divorced wife. Section
11. See e.g; Muhammed v. Sainabi^ 1976 K. L.T. 711; Khalid, J. (mahr of Rs. 2,200 paid; maintenance allowed). Rukhsana Parvin v. Shaikh Mohammad Hussein, 1977 Cri, L.J. 1041 (Bom.); Chandurkar
&. Shah, JJ. {mahr of Rs. 500 paid; maintenance disallowed). Hamid Khan v. Jummi £/, (1978) I.L.R.
M.P. 595; Sen, J. (wife had remitted mahr as consideration for a divorce by khul [mutual agreement];
maintenance disallowed).
12. Bai Tahira v. AH Hussain Fissalli Chothia, A.LR. 1979 S,C. 362; Krishna Iyer, Tulzapurkar,
Pathak, JJ.
13. Fuzlunbi \.-K. Khader Vali, A.l.R. 1980 S.C. 1730; Krishna Iyer, Chinnappa Reddy A.P. Sen,
JJ.
14. Supra note 12 at 365.
15. Id, at P. 365-6 (Emphasis added).
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127(3)(Z>) operated to protect the husband from double liability, not to deprive a
divorcee of her statutory right under section 125 in circumstances where payment
under customary or personal law left her inadequately provided for.
Ill Case of Shah Bano, 1985
A third case involving the rights under section 125 of the 1974 Code of a
Muslim woman divorced by talaq which reached the Supreme Court - Mohammed
Ahmed Khan v. Shah Bano Begum16 - gave rise to controversy that was to shake
the nation. This was an appeal by the husband from the judgment of the Madhya
Pradesh High Court directing him to pay to his divorced wife Rs. 179 per month
(enhancing the paltry sum of Rs.25 per month originally ordered by the magistrate).
The parties had been married for forty-three years before the ill and elderly
wife had been thrown out of her (polygamous) husband's house. For approximately two years the husband paid maintenance to his wife at the rate of Rs. 200
a month; then these payments ceased. When Shah Bano petitioned for a maintenance order under the Code of Criminal Procedure, her husband responded - as
Muslim husbands have been responding in such circumstances for more than a
century - pronounicing a triple talaq. He paid into the court Rs. 3,000 as deferred
mahr and a furhter sum to cover arrears of maintenance and maintenance for the
iddah period. The husband then sought to have the women's maintenance petition
dismissed on the ground that she had received the amount due to her on divorce
under the Muslim personal law applicable to the parties.
The wife had managed her husband's home for more than forty years, had
borne and raised five of his children, and was totally incapable of taking up a
career and independently supporting herself at this late stage in her life. Remarriage was obviously a possibility so remote as to be not even worth mentioning.
The husband, on the other hand, was a very successful advocate with (as alleged
by the wife and not denied by the husband) an income of approximately Rs. 60,000
per year. Yet he balked at providing less than Rs. 200 per month to the woman
who had shared his life for nearly half a century, who was the mother of five of
his children, and who was in desperate financial straits.
The only question for decision in Shah Bano concerned the interpretation of
section 127(3)(Z>) in circumstances where a Muslim woman has been divorced by
her husband and paid her mahr. Does payment of mahr, irrespective of the amount,
indemnify the husband from his obligation under section 125 of the new Code?
This is the same question on which the Supreme Court had ruled in the two
previous judgments.
The Chief Justice of India himself presided over the five member Bench
convened to hear the Shah Bano appeal in April 1985. The Supreme Court asserted
and re-affirmed the supremacy of the Code over the personal law of the parties.
If there were a conflict between the terms of the Code and the rights and
16. A.I.R. 1985 S.C. 945 (Chandrachud C.J.; Desai, Chinnappa Reddy, Venkataramiah, Ranganath
Misra, JJ.) taken into account in assessing her ability to maintain herself and the amount of maintenance
she requires.
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obligations of individuals under their personal law, the former would take precedence.
The earlier decisions in Bai Tahira and Fuzlunbi were upheld, subject to one
caveat. Justice Krishna Iyer had considered mahr within the cognisance of section
127(3)(6), although to exonerate the husband from liability for a maintenance
order under the new Code, the amount of mahr had to constitute a reasonable
substitute for what the woman would receive under the Code. The Shah Bano
Bench came to the conclusion that mahr was not a sum "payable on divorce"
within the meaning of the section.17
Although the Supreme Court rightly appreciated that mahr is more closely
connected with marriage than with divorce {e.g., it is set at the time of marriage,
in consideration of the marriage and as a mark of respect for the bride, and bears
no necessary relationship to the resources of the husband or the needs of the wife
at the time of divorce), the fact remains that mahr, or a significant portion of it,
is usually payable at the time the marriage is dissolved, whether by death or
divorce. This fact is relevant in the context of section 125,,8 even if it is not
relevant in the context of section \21{3){b).
Thus it is of little significance whether or not mahr is held to be a "sum ...
under any ... personal law applicable to the parties ... payable on divorce" within
the meaning of section 127(3)(2>). If mahr is such a sum (and has been paid), it
cannot ipso facto absolve the husband of his liability under section 125 {vide Bai
Tahira and Fuzlunbi). The amount of mahr will have to be considered in determining whether it constitutes a reasonable alternative to the maintenance order.
If mahr is not such a sum (again assuming that it has been paid), it obviously
couldnot secure immunity for the husband invoking section 127(3)(6). But even
in that case the mahr is part of the resources available to the woman and will be
taken into account in considering her eligbility for a maintenance order and the
quantum of maintenance (if any) that should be ordered in her favour.
Having held that divorced Muslim women were (equally with divorced
women of any other religion) entitled to apply for maintenance orders against their
former husbands under section 125, and that such applications were not barred
under section 127(3){b) merely on proof that the woman had received some mahr
at the time of the divorce, the husband's appeal could have been dismissed at this
point. In retrospect, it may be easy to suggest that the Supreme Court should have
stopped here and refrained from pursuing the discussion further. After all, what
might or might not be the position of Muslim law on the question of a husband's
obligations toward the woman he had divorced was totally irrelevant for the
decision of the case. The Shah Bano case arose under the maintenance provisions
of the Criminal Procedure Code; it had to be decided according to the terms of that
statute; the only relevant questions concerned the interpretation of section 125 and
127(3)(6).The Supreme Court had on two previous occasions held that remittance
17. See, supra note at 9.
18. The woman is eligible for a maintenance order only if she is unable to maintain herself. If the
mahr has been paid, it is a resource in her hands and will be taken into account in assessing her ability
to maintain herself and the amount of maintenance she requires.
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of customary or personal law sums "payable on divorce" did not automatically
indemnify the husband against a maintenance order under section 125 unless the
sum so paid constituted an adequate substitute for the maintenance allowance
otherwise available under that section. Having gone further and held that mahr did
not even come within the terms of section \27{3){b), thus relegating mahr to the
status of any other property or income which the woman possessed, i.e., relevant
under section 125 but irrelevant under section I27(3)(6) the Supreme Court did
not need to address the other questions raised by the husband (and his supporters)
in argument.
Under the circumstances, however, it would have required considerable
judicial restraint to have refrained from pursuing the discussion further; and it is
not at all clear that such restraint would have avoided the conflict which the
decision precipitated.
The husband had based his entire argument on his claim to be excluded from
the operation of section 125 on the ground that Muslim law exempted him from
any responsibility for his divorced wife beyond payment of any mahr due to her
and an amount to cover maintenance during the period of iddah, and that section
127(3)(Z>) conferred statutory recognition on this rule of Muslim law. Supported
by spokesmen representing Muslim communal organisations who had been granted
the right to be heard as interveners - including representatives of the All India
Muslim Personal Law Board, the Jamiat-ul-Ulema, and the Jamaat-i-Islami - and
their array ,of lawyers, it was the husband who brought Muslim law into the
discussion and asked the Supreme Court to endorse his (and his supporters') view
of what that law was.
Thb "Muslim law" argument was contested by a couple of Muslim women
social workers who, appearing as interveners on the side of the wife, raised (with
the help of their most able counsel, the issue of mataa, contending that "Muslim
law entitled a divorced Muslim woman to claim provision for maintenance from
her husband after the period of iddah." 19
What the matter came down to was this: the husband was claiming exemption
on the basis of section 127(3)(£) on the ground that he had handed over to his wife
"the whole of the sum which ... [under Muslim law] applicable to the parties, was
payable on such divorce". The women contended that he had not paid "whole of
the sum", he had only paid the mahr and iddah maintenance; he had not provided
the mataa (provision or maintenance) referred to in the Quran, 11:241.
None of the previous cases arising under the new Code had dealt with the
argument that Muslim law required payment, in addition to mahr and iddah
maintenance (assuming that either or both of these came within the terms of
section 127(3)(&)), of the "provision" {mataa) enjoined by the Quran in 11:241.
Counsel appearing for the women interveners and the wife supported20 the
contention that mataa (provision or maintenance in addition to iddah maintenance
19. Daniel Latifi, "The Shah Bano Case: Unprecedented Controversy," 2 Popular Jurist 10. (1985)
21 A.S.I.L. 385-400 (1985); Sunday, 14 June 1986, pp. 32-37.
20. This information is not available from the reported judgment, but was reiterated by Daniel Latifi
in the numerous articles he wrote concerning the judgment.
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and mahr) due a divorced woman was recognised in Muslim law by reference to
Shafi law and by invoking the fundamental principle of Hanafi law which lays
down that in circumstances where adherence to Hanafi rules would lead to
injustice, the judge is free to follow one of the other Sunni schools on the
particular point.21
Perhaps unable to deal with or appreciate the significance of the material
brought to its notice by the women and their counsel, while yet wishing to cast
Muslim law in a favorable light for consumption by non-Muslims, the fact remains
that the Supreme Court's approach may appear simplistic and superficial to a
scholar of Muslim law.
The Supreme Court quoted passages from Mulla's Principles of Mahomedan
Law, Tyabji's Muslim Law, and Paras Diwan's Muslim Law in Modern India
(standard textbooks in use in India) to the effect that the divorced wife's right to
maintenance ceased on expiration of her iddah. The court, however, concluded
that the general propositions reflected in these statements did not deal with the
special situation where the divorced wife was unable to maintain herself. It was
observed :
We consider it not only incorrect but unjust to extend the scope of the
statements extracted above to cases in which a divorced wife is unable to
maintain herself. We are of the opinion that the application of those
statements of law must be restricted to that class of cases, in which there
is no possibility of vagrancy or destitution arising out of the indigence of
the divorced wife.22
While the general textbook propositions regarding the ex-husband's liability
under Muslim law were not concerned with the special situation where the ex-wife
was destitute, the court in the present case was not concerned with the general
rights of the divorced woman which might be enforceable in a civil court. The
instant case, and the maintenance provisions of the Criminal Procedure Code,
were concerned with the specific situation where a man having sufficient means
failed or refused to maintain his ex-wife who was in desperate straits and unable
to maintain herself. By differentiating between the general and the specific, the
court carved out space where the provisions of the Code could operate without
coming into conflict with Muslim personal law.23
This conclusion was strengthened by the verse of the Quran, 11:241 which
refers to the obligation of the husband to provide maintenance (or "provision")
for his divorced wife.
21. This principle was applied when propositions derived from Maliki law were made applicable to
Hanafi women by the Dissolution of Muslim Marriages Act 1939.
22. Supra note 16 at 950.
23. Whether or not the provisions of the Code were in conflict with those of Muslim law was,
however, irrelevant: if there were a conflict, the statutory provisions of the Cr. P.C. would take
precedence.
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These Aiyats [Quran, 11:241-242] leave no doubt that the Quran imposes
an obligation on the Muslim husband to make provision for or to provide
maintenance to the divorced wife. The contrary argument does less than
justice to the teaching of the Quran.24
The Supreme Court did not go further and actually discuss or interpret
"mataa."
IV The Muslim Women (Protection of Rights on Divorce) Act 1986
The self-appointed spokesmen of Muslim opinion were not pleased and,
having girded their loins to fight the battle in the court house, they immediately
took the agitation to the streets. The Congress government of Rajiv Gandhi
wavered and manoeuvred and eventually capitulated; the Muslim Women (Protection of Rights on Divorce) Act was forced through Parliament with a three line
whip and the obvious intention of overruling the Shah Bano decision and preserving Muslim votes for Congress.
But the Act itself is very curiously and ambiguously drafted. The important
section is section 3, which declares that the divorced woman is entitled to obtain
from her former husband "maintenance." "provision," and mahr, and to recover
from his possession her wedding presents and dowry (jahez); and authorises the
magistrate to order payment and/or restoration of these sums or properties. The
crucial provision is found in section 3(l)(a), which states that the divorced woman
"shall be entitled to {a) a reasonable and fair provision and maintenance to be
made and paid to her within the iddat period by her former husband.24"
The wording appears to imply that the husband has two separate and distinct
obligations: (/) to make a "reasonable and fair provision" for his divorced wife;
and (/'/) to provide "maintenance" for her. The emphasis of this section is not on
the nature or duration of any such "provision" or "maintenance," but on the time
by which an arrangement for payment of "provision" and "maintenance" should
be concluded, i.e., "within the iddat period".
On this reading, the Act only excuses from liability for post-iddah maintenance a man who has already discharged his obligations of both "reasonable and
fair provision" and "maintenance" by paying these amounts in a lump sum to his
wife, in addition to having paid his wife's mahr and restored her dowry, etc. as
per sections 3(1 )(c) and 3{\){d). The whole point of Shah Bano was precisely that
the husband had not made "a reasonable and fair provision" for his divorced wife,
even if he had paid the amount agreed as mahr half a century earlier and provided
iddah maintenance; he was therefore ordered to pay a specified sum monthly to
her under section 125 of the Criminal Procedure Code.
Rather than reversing the Shah Bano decision, it could be argued that the
Muslim Women (Protection of Rights on Divorce) Act codified it!
That the phrase appearing in section 3(l)(a) of the Muslim Women Act - "a
reasonable and fair provision and maintenance" - encompasses two different
24. Supra note 16 at 952.
24a. Emphasis added.
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things is indicated,y/m/y, by the use of two different verbs - "to be made andpaid
to her within the iddat period". Clearly, "a fair and reasonable provision" is to
be "made", while "maintenance' is to be 'paid". Secondly, section 4 of the Act,
which empowers the magistrate to issue an "order for payment of maintenance"
to the divorced woman against various of her relatives contains no reference to
"provision". Obviously, the right to have "a fair and reasonable provision" made
in her favor is a right enforceable only against the woman's former husband, and
in addition to what he is obliged to pay as "maintenance".
Thirdly, the interveners on behalf of the husband in Shah Bano could not
refute the words of the Quran, 11:241; all they could do was to contend that Yusuf
Ali's translation of "mataa" as "maintenance' was incorrect and to point out that
other translations employed the word "provision" This the Supreme Court termed
"a distinction without a difference" - as indeed it was on the facts of the case
before it: whether mataa was rendered "maintenance" or "provision", there was
no pretence that the husband in Shah Bano had provided anything at all by way
of mataa to his divorced wife. In the Lok Sabha debates after the judgment,
Ibrahim Sulaiman Sait (speaking in support of overruling the Shah Bano decision
by statute), while apparently conceding that a divorced Muslim woman was
entitled to mataa, argued that mataa "is a single or one time transaction. It does
not mean payment of maintenance continuously at all." 25 This concession supports the argument that the word "provision" in section 3{\){a) of the Muslim
Women Act incorporates mataa as a right of the divorced Muslim woman distinct
from and in addition to mahr and maintenance for the period of iddah.
Thus, even assuming (without conceding) that the "maintenance" referred to
in section 3(1 ){a) is confined to maintenance for the period of iddah, there still
remains the question of "provision". This "provision" {mataa) is neither defined
by the Act nor subjected to a statutory maximum. The determination of what
constitutes, on the facts of any given case, "a reasonable and fair provision" rests
completely in the discretion of the magistrate. Section 3(3) of the Act instructs the
magistrate to determine what would constitute "reasonable and fair provision and
maintenance" with reference to the needs of the divorced woman, the means of
the husband, and the standard of life the woman enjoyed during the marriage.
There is no reason why "reasonable and fair provision" could not take the
form of the regular payment of alimony to the divorced woman. Again, rather than
reversing the Shah Bano decision, it could be argued that the Muslim Women
(Protection of Rights on Divorce) Act codified it!
However ironic it may appear, there is an interpretation of the Muslim Women
Act which - to the dismay of its backers and the surprise of many of its opponents
- may actually do what the title suggests it was intended to do: protect the interests
of the divorced Muslim woman. Of necessity (and in the hope of avoiding obvious
constitutional hurdles) the Muslim Women Act was dressed up to look like a piece
25. LSD. 23 Aug, 1985, col. 406. Of course, a woman would ordinarily prefer a lump sum
settlement; allowing payment to be made in instalments is an indulgence granted to the husband, not a
favor to the wife. Few husbands possess sufficient financial liquidity to be able to make "fair and
reasonable provision" for an ex-wife in the form of a lump sum divorce settlement.
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of "reformist' legislation, codifying part of Muslim law in the interest of a class
of disadvantaged Muslim women, whose rights required definition and protection.
The disguise, in the result, might prove too convincing.
It is in this context that attention must be drawn to a recent decision of the
Bangladesh High Court, viz. Hefzur Rahman v. Shamsun Nahar BegumPa The
parties were married in March 1985; a son was born in December 1987; and the
husband divorced the wife in August 1988. In November 1988 the divorced
woman filed a suit in the family court for her mahr and for maintenance for herself
and her infant son at the rate of Taka 1,000 per month each.
The family court decreed the suit and, in addition to the amount due as mahr,
ordered the defendant (ex-husband/father) to pay Taka 3,000 for iddat maintenance to the plaintiff {Taka 1,000 per month for three months), and Taka 1,000
per month for the maintenance of the child.
On the defendant's appeal, the district judge reduced the rate of maintenance
for each plaintiff to Taka 600 per month. The defendant took the matter to the
High Court in an attempt to get the maintenance payments reduced further.
The High Court, firstly, reinstated the maintenance at the rate initially
decreed by the family court. Then the Divisional Bench took up, suo motu, the
question of the duration of the maintenance decreed in favor of the divorced
woman, which both lower courts had limited to the three months of iddat. Quoting
the verse which appears no less than four times in sura 54 of the Quran {ayats 17,
23, 32, and 40) - "And we have made the Quran easy to understand and remember;
then is there any that will receive admonition?" - the court rejected taqlid and
endorsed the principle of ijtihad. It noted that Quran urges: "Those to whom we
have sent the Book study it as it should be studied: they are the ones that believe
therein" (Second Sura Baqara, verse 121). This verse directs continuous study of
the Quran which is in conformity with the dynamic, progressive and universal
character of Islam.
... The court concluded that a civil court has the jurisdiction to follow the law
as in the Quran disregarding any other statement of law on the subject [e.g., in the
commentaries compiled by jurists], if contrary thereto even though it may have
been laid down by the earliest jurists or commentators and though followed for a
considerable period.26
Applying these principles to Quran 11:241 and analysing the import of the
Arabic text, the Divisional Bench further observed that a woman who was
divorced was entitled to household stuff, convenience which was known, recognised,
honourable, a kindness. Therefore, Abdullah Yousuf Ali was correct in translating
the expression "mataaoon bill maaroof as "maintenance should be provided on
a reasonable scale".
Considering all the aspects it finally held that a person after divorcing his wife
was bound to maintain her on a reasonable scale beyond the period of iddat for
an indefinite period, till she remarries another person.
25a. 47 DLR(1995) 54.
26. Reference is to the statement of the Privy Council in Aga Mahomed Jaffer Bindanim v. Koolsoom
Beebee, I.L.R. 25 Cal. 9.
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The petitioner was ordered to pay the maintenance as originally set by the
family court {Taka 1,000 each per month) to his former wife until she remarried
and to his son until he attained majority.
V Mataa, Shah Bano and the Muslim Women Act
The question of "mataa" has been constantly present throughout the debates
over the terms of sections 125, and 127 of the new Code of Criminal Procedure,
the Shah Bano case, and the Muslim Women (Protection of Rights on Divorce) Act
- but it has been more or less on the sidelines. To be sure, the precise provisions
of one or other personal law are irrelevant to a consideration of section 125 of the
Cr. P.C; but "personal law" was (needlessly, irrelevantly, and ambiguously)
brought into the picture by the amendment of section 127 of the Code. And, of
course, the Muslim Women Act explicitly purports to "codify' the Muslim
personal law on (inter alia) the matter of the economic rights of the divorced
Muslim woman.
The Bangladesh decision, with its unambiguous interpretation of mataa and
its equally unambiguous endorsement of mataa as the right of the divorced Muslim
woman, is certainly relevant to the reconsideration of the terms of section 127 of
India's new Code of Criminal Procedure, the Shah Bano case, and the Muslim
Women (Protection of Rights on Divorce) Act.
Perhaps the Supreme Court of India will be fortified by the Dhaka decision
when it faces - as it eventually must the conflicting judgments emanating from the
various High Courts require resolution and fundamental constitutional questions
must be answered - the task of interpreting the Muslim Women Act. Perhaps so
fortified, the Indian Supreme Court will see its way clear to preserve that part of
the Muslim Women Act which, by means of an enlightened approach, can be
construed so as to confer a real boon on Muslim women. 27
Lucy Carroll*
27. Nevertheless, some parts of the Act, e.g., s 5, must be struck down as unconstitutional.
* Fellow, National Humanities Center, North Carolina, USA.
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