Legal Article

Muslim Women (Protection of Rights on Divorce) Act, 1986

Shivendra Pratap Singh

Advocate

High Court Lucknow

Article

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Published on: 31 Jul, 2023

The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed in the backdrop of the Shah Bano case and the ensuing controversy. The Act aimed to protect the rights of Muslim women who have been divorced by, or have obtained a divorce from, their husbands. Here are the salient features of the Act:

  1. Scope of Maintenance: The Act shifted the responsibility of maintaining the divorced woman away from the husband after the iddat period (roughly three menstrual cycles post-divorce). It provided that during the iddat period, it’s the responsibility of the husband to make “reasonable and fair provision” and maintenance for the wife.
  2. Relatives’ Responsibility: After the iddat period, the onus of maintaining the divorced woman falls upon her relatives – initially on her children, and if they are unable to do so, then on her parents, and so on.
  3. Wakf Board’s Responsibility: If the woman does not have any relatives or if her relatives are unable to maintain her, then this responsibility is shouldered by the Wakf Board.
  4. Mahr and Other Properties: The Act mandates that divorced Muslim women are entitled to all the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband, or the husband’s relatives or friends. This includes her ‘mahr’ (a mandatory payment, in the form of money or possessions paid by the groom, or by the groom’s father, to the bride at the time of marriage).
  5. Custody of Children: The divorced woman has the right to custody of her minor children. However, the father is obligated to contribute to their maintenance.
  6. Appeal: Decisions made under this Act can be appealed to the higher civil courts.
  7. Overriding Effect: The Act has an overriding effect, meaning its provisions would have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or in any personal law applicable to the parties.
  8. Limitation: Divorced women can’t claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC) if they have been divorced following the provisions of the Muslim Law, which was the primary contention in the Shah Bano case.

The Act was passed amidst intense debates and discussions, and while it aimed to cater to the specific needs of Muslim women post-divorce, it was criticized by many for being regressive, especially when compared to the rights of divorced women from other religions in India. The Act’s critics argued that it left Muslim women vulnerable, particularly in cases where they had no family support or means of sustenance post-divorce.