Discuss the entitlement of a divorced Muslim woman for mahr, maintenance, and other properties under the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Question: Discuss the entitlement of a divorced Muslim woman for mahr, maintenance, and other properties under the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. [RJS 2015]

Find the question and answer of Muslim Law only on Legal Bites. [Discuss the entitlement of a divorced Muslim woman for mahr, maintenance, and other properties under the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.]

Answer

Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 deals with the Mahr or other properties of a Muslim woman to be given to her at the time of divorce. Sub-clause (a) of clause (1) of Section 3 deals with a reasonable and fair provision and maintenance within the 'Iddat period' by her former husband. Prima facie it seems that under this Section parliament had not intended to impose an obligation on the husband after the Iddat period.

While interpreting the provision of Sections 3(1) (a) and 4 of the Act, the Hon'ble Apex Court has settled that a divorced Muslim woman is entitled to a fair and reasonable provision for her future being made by her former husband, which must include maintenance for future extending beyond the Iddat period. It was held that the liability of the former husband to make a reasonable and fair provision under Section 3(1) (a) of the Act is not restricted only to the period of Iddat but that a divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the Iddat period.

Supreme Court in Danial Latifi and Other v. Union of India, (2001) 7 SCC 740, the supreme court has clarified the issue that

"The contention that the expression "within" in Section 3(1)(a) should be read as "during" or "for" cannot be accepted because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that Act would mean that on or before the expiration of Iddat period, the husband is bound to make and pay maintenance to the wife and if fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the Iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time"

In Musarat Jahan v. State of Bihar, AIR 2008 Pat 69, the Patna high court held that under Section 3(1) (a) of the Muslim Women Act, 1986 a divorce Muslim Woman would be entitled to maintenance continuously and beyond the iddat period till she remarries or she is able to maintain herself.

Moreover, Section 3(1) (b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 contemplates the divorced wife's right to claim maintenance in respect of her children and this has nothing to do with the independent right of the children to be maintained by the father under Muslim Law. That right of the children is separate and independent of the divorcee wife's (their mother's) right to claim maintenance. Naturally, therefore, such a right cannot certainly be affected by the provision of Section 3(1)(b) of the Act of 1986.

In Noor Saba Khatoon v. Mohd. Quasim, A.I.R. 1997 SC 3280, the Supreme Court has observed that a careful reading of the provisions of Section 125 CrPC and section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 Act makes it clear that the two provisions apply and cover different situations and there is no conflict, much less a real one, between the two. Whereas the 1986 Act deals with the obligation of a Muslim husband vis--vis his divorce wife including the payment of maintenance to her for a period of two years of fosterage for maintaining the infants where they are in the custody of the mother, the obligation of a Muslim father to maintain the minor children is governed by Section 125 of CrPC and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children, this obligation extends till their marriage. Even under personal law, the right of minor children to receive maintenance is absolute.

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