Conclusion and suggestion

Conclusion:
India has been for centuries a multi-religious and multi-ethnic society and
yet it has the distinction of maintaining unity in such diversities. The social
relationship of people in India is governed by one's own personal law. Muslims in
India, like other religious groups such as Hindus, Christians and Parsis have a
separate personal law of their own covering matters pertaining to marriage,
divorce, maintenance, inheritance and custody of children. The law relating to
maintenance governing the religious minorities of Muslims is dealt here under for
comparative value.

The Islamic Law was introduced in the Indian sub-continent in the early
eight century and has it's own value today. The personal law is constitutionally
recognized and judicially enforced. It has now become an integral part of the
Indian civil law system. The members of Muslim community have high regard for
their personal law and consider this to be one of their distinct religious based
possession.
The obligation of a husband to maintain his wife subsists not only during
coverture but even upon dissolution of the marriage by divorce or annulment. The
personal laws of all the religious groups in India have statutory provisions
imposing an obligation on the husband to maintain his wife. The obligation extends
until the time she gets remarried or is disqualified for any other reasons. As regards
Muslims, this is a topic of controversy. The predominant view that prevails among
Muslims scholars is that a divorced wife is entitled to maintenance only during the
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period of 'iddat' and not later. The notion of divorce does not extend beyond a short
waiting period called ‘iddat'. The Muslim law does not recognize any obligation on
the part of man to maintain his wife, whom he has divorced.
The remedy though not available to her under the Muslim personal law had
been extended to her by the secular law under Section 125 of the Criminal
Procedure Code. Even when the provisions were on the anvil, it faced stiff
opposition from orthodox Muslims as it enabled the court to award maintenance
beyond the three months ‘iddat' period. The Government then too capitulated on
the issue. The discussion which stood terminated was reopened just to satisfy
orthodox Muslims. The provision finally emerged with changes whereby if post
divorce entitlement under personal law realised by the divorced wife, this would be
taken into account, and if maintenance has been granted earlier, it could be
cancelled. The secular law had its application to all section of the Indian
community inclusive of Muslims. The Supreme Court did recognize the right of
Muslim divorce woman in Bai Tahira v. Ali Husain Fidalli chothia and Fuzlumbi
v. Khader Vali. The Court therein took the view that the divorced Muslim woman
is entitled to apply for maintenance under Section 125 of the Code. The Supreme
Court re-emphasized the stand in Shah Banozs, when a scrupulous rich husband
sought to escape the application of Section 125 on the ground that provision of
maintenance to a divorced wife beyond the ‘iddat' period was contrary to Muslim
law.
(a) Shah Bano Controversy Neglected and denied of maintenance by her husband,
an advocate by profession Shah Bano, an old Muslim woman sought for remedy
through maintenance. She moved a petition under Section 125 of the Criminal
Procedure Code before the Court of learned Judicial Magistrate (First Class),
Indore. Thereupon, the husband divorced her by an irrevocable talaq and pleaded
that she ceased to be his wife, and hence not entitled to maintenance. The learned
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Magistrate directed her husband to pay a princely sum of Rs.25/- per month as
maintenance. In revision, the High Court of Madhya Pradesh enhanced the amount
to Rs.179.20 per month. Where upon, her husband took the matter before the
Supreme Court by special leave. The Supreme Court was charged with the task of
deciding whether Section 125 of the Code is applicable to Muslims without
interference of their personal law. They had also such issues to decide as, whether
under the Muslim personal law there remains any obligation on the husband to
provide maintenance to his divorced wife and the circumstances that would
absolve this duty on the husband after divorce.
The Supreme Court by its judgement decided in 1981 upheld the validity
and application of Section 125 to Muslim community. The Court went further to
analyze the religious texts and Quranic versions on the topic of maintenance in
respect of divorced Muslim woman. The Court held that Muslim personal law did
make provision for maintenance to divorced Muslim woman. lt also held that a
divorced Muslim wife is entitled to apply for maintenance under Section 125 and
that, mehar is not a sum which under the Muslim personal law, is payable on
divorce. The Supreme Court took also the opportunity to review its own judgement
decided in Bai Tahira and held that mehar, not being payable on divorce does not
fall within the meaning of Section 125 (3). The judgement became highly
controversial and created history. The Muslim leaders felt that the decision is an
encroachment into the divine nature of Muslim personal law. The law laid down by
the Supreme Court though welcomed by substantial members of the Muslim
community, the storm of protest raised by the communal leaders suppressed their
interest in the law.
The Muslim circles reaction to the Shah Bano judgement was quite
unfavourable. Their main apprehension was that, first the alleged attempt of the
Court to reinterpret certain Quranic verse; and, secondly the admonition to the
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State in respect of uniform civil code which according to them amounts to a
judicial stricture on Muslim personal law on a whole. While the Muslims were so
viewing the judgment quietly, anti Muslim elements went into swift action and,
showing the judgment out of proportions, projected it as a virtual death warrant on
Islamic law. Involved in this game were, consciously or unconsciously, many
eminent publicmen, prominent lawyers and academics as also various
organizations and institutions. As a result, religious sentiment of the Muslims were
badly hurt not so much by the wording of the Shah Bano judgment itself as by its
projection by others as an anti-Islamic law ruling of the highest court of justice in
the country. They then decided to act with strength and unity. Muslims
organizations and individuals, under the leadership of the All India Muslim
Personal Law Board, started a countrywide agitation and evolved a near consensus
in major sections of the Muslim citizenry of lndia in favour of the move to demand
statutory protection of their personal law.
The then Prime’ Minister of India, Thiru. Rajiv Gandhi realised the
gravity of the situation and with a view to pacify the Muslim communal leaders
initiated discussion with them. Meanwhile at the instance of Muslim members then
Law Minister A.K. Sen introduced in the Lok Sabha the Muslim Woman
(Protection of Rights on Divorce) Bill, 1986. The option being left with the
Government either to amend Sections 125-128 of the Criminal Procedure Code or
to pass the bill to supersede the judgment of the Supreme Court in Shah Bano, the
Rajiv Gandhi Government preferred the later and thus came the Muslim Woman
(Protection of Rights on Divorce) Act, 1986.
(b) The Muslim Woman (Protection of Rights on Divorce) Act, 1986. The law has
been specially enacted to have application only to a divorced woman belonging to
Muslim community. The phrase divorced woman is defined under section 2(a) as
“to mean a Muslim woman who was married according to Muslim law, and has
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been divorced by, or has obtained divorce from, her husband in accordance with
Muslim law”. Thus it excludes the married woman and children from the
application of the Act. The phrase ‘iddat is defined as the period in respect to
divorced Muslim woman as;
(i) three menstrual courses after the date of divorce, if she is subject to
menstruation,
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enciente at the time of her divorce, the period between the divorce and
the delivery of her child or the termination of pregnancy, whichever is earlier.
(I) Payment of mahar and maintenance Section 3 of the Act provide for
maintenance, payment of mahar and return of properties belong to the divorced
woman. Payment of maintenance Clause (a) stipulates for a reasonable and fair
provision and maintenance for the wife during the period of iddat by her husband.
The clause uses the words by her ‘former husband’. It has been over-looked that
during the period of iddat he is not a former husband; he is the present husband,
and that is why he is required to maintain her - that is the basis of maintenance, the
fundamentalists too concede. Payment of Mahar Clause (c) stipulates for the
payment of the remaining amount of dower, whether prompt or deferred. The
deferred dower has to be paid, as that is the stipulation of every marriage contract,
and the prompt dower, or any remaining portion of it has to be paid, in case it has
not been paid soon after the marriage. Return of properties Clause (d) lays down
that all the properties given to the Muslim with before or at the time of marriage or
after the marriage by her relatives, or the relatives of her husband or his friends
should be paid to her.
In case, obligations stipulated under clases (a), (c) and (d) are not
fulfilled, the same have been made enforceable by an application in the
Magistrate’s Court. The Magistrate is required to pass an order ordinarily within a
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month of the presentation of the application by the wife. The order if not complied
with, the Magistrate is empowered to realize the same from the husband as if it is a
fine. The husband can also be sentenced to a term of imprisonment which may
extend to one year or until payment is sooner made.

7.2. Suggestions

 Maintenance should be reasonable : The sum of maintenance should

sufficient to give a dignified life to Muslim Women. As she live before
divorce.
 Waqf Board should create a panel of advocates to give legal aid to Muslim
Women who are suffering in case of maintenance and other problem because
Half the women respondents received maintenance from the husband during
the marriage but only 27% reported receiving none. Almost half of the
divorced women were either being supported by their own parents or were
supporting themselves by working as they did not receive maintenance from
the husband. Mehr is an important Quranic right given to a Muslim woman
that she can demand from her groom. Itcan be in the form of cash or any
other form such as gold, property, etc, and it should be given to her at the
time of marriage. Our findings suggest that this important affirmative
measure favouring women has been diluted in practice. More than 40%
women had received less than Rs 1,000 as mehar while 44% women did not
received mehar at all. Most respondents were not aware of the empowering
provisions about mehar and that it is their right to decide the amount. That’s
why of legal aid should be enacted and a proper mechanism should provided
to Muslim women to enforce their legal right after the divorce.

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 Polygamy should be Bain:- The Quran was being misinterpreted by Muslim
men to have more than one wife.
 When the Quran allowed polygamy, it was for a fair reason. When men use
that provision today, they do it for a selfish reason. Polygamy finds mention
in the Quran only once, and it is about conditional polygamy.
 Polygamy without wife's consent offends Article 14 (equality before law for
all) and Article 15 (the state's non discrimination on grounds of caste,
religion, sex, etc). If the state tolerates this law, it becomes an accomplice in
the discrimination of the female, which is illegal under its own laws. 92.1%
Muslim women want the discriminating practise of polygamy strictly
banned.

 Uniform civil court may be a good solution:- For instance, in feudal

society, women were regarded as inferior to men. Hence the law
discriminated against them. Thus, while a Muslim male can marry 4 wives, a
Muslim female can marry only one husband. A Muslim husband can divorce
his wife without going to court and without giving any reason , but a Muslim
wife who wants a divorce has to file a petition in Court, and plead and prove
one of the grounds mentioned in section 2 of the Dissolution of Muslim
Marriages Act, 1939, That petition may take years to decide. A Muslim
daughter gets only half what the son inherits. Many more examples of
discrimination against women in Muslim Law can be given. The modern age
is the age of equality. Monogamy represents equality between men and
women. The Muslim law, being a law of medeival society, is totally
outdated in the modern age, and needs to be drastically amended. The age-
old religious customs and personal laws of our country are usually in favour

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 of men, especially the Muslim men. A uniform civil code will help in
improving the conditions of women in India. It will help in bringing changes
in the age-old traditions that have no relevance in today’s modern society,
where women should be given equal rights and should be treated fairly.
 Goa is the only State to have implemented the Directive Principle on
uniform civil code and the State today has Goa Civil Code or the Goa
Family Law, that governs all the people of Goa, irrespective of the religion
or the community to which they belong.
 According to the survey of Bharatiya Muslim Mahila Andolan almost 91%
Muslim women’s in the favour of codifying uniform civil code, so that it
should be implemented in India for the benefit of Muslim women.
 Triple Talaq should be Bain:- Triple talaq is a procedure of divorce,
recognised by the Sharia Law in India. A Muslim man only has to
pronounce the word ‘talaq’ thrice in the presence of two witnesses to divorce
his wife. It is very quick, easy and effective. Recently, Muslim men have
been using other forms of communications such text messages and emails in
order to divorce their wives. The number of impoverished Muslim women
has risen as a result of a rise in oral divorces in recent times. Many Muslim
women are uneducated and cannot provide for themselves, thus, triple talaq
only serves to magnify their hardships. The husbands can use it to their
advantage and divorce their wives over petty arguments or simply because
they are seeing other women. While many other Muslim countries such as
Pakistan, Bangladesh, Turkey, Egypt, etc. have banned triple talaq either
impliedly or expressly, the practice is still valid in India. Recently, Shayara
Bano has filed a petition to the Supreme Court of India demanding the
abolition of triple talaq and polygamy under Muslim law in India. Various

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 Muslim campaign groups who believe that these practices are discriminatory
in nature support the move. There is an argument to the effect that triple
talaq violates Part III of the Indian Constitution enlisting fundamental rights,
in particular, discrimination and equality before law. The gist of the
arguments forwarded in the case is that triple talaq is unconstitutional. A
study conducted by the NGO, Bharatiya Muslim Mahila Andolan, across 10
states has found that 92.1% Muslim women want the discriminating practise
of oral triple talaq to be banned.
 For the proper functioning of Waqk board there should be a auditing
authority which has power to see the mala practices of a Waqk board.
 A certain portion of fund should be kept separately by Waqk board for the
purposes to maintain Muslim women.
 Muslim women empowerment:- high illiteracy, constantly increasing
everyday insecurity and deprivation of welfare schemes are some of the
major causes of Muslim women’s disempowerment. In such an unsecured
social environment parents see security of their young daughters in marriage.
Those who desire education for their daughters become hopeless due to lack
of opportunities within their localities on the one hand and; on the other, are
unwilling to send them outside localities because of perceived or real
insecurity. As a result a large number of Muslim girls remained uneducated
and married in tender age. So security laws shold be implemented strictly
 Muslim women most illiterate (57.55%), the percentage of illiterates among
them rose to 84% in rural North. Although educational status of south Indian
Muslim women was reported to be better than that of their counterparts in
North India., it was below educational status of Hindu women. Illiteracy
level of Muslim women was found lower than that of SC, ST and OBCs.

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 However, their level of middle and secondary education was found slightly
better than that of SC and ST women. But they lagged behind SC women in
higher education. Overall “Muslim women across are more illiterate than
Hindus – 59% of them have never attended school, less have completed it; in
short, Muslim women fare more poorly than the average Hindu women in
education. Very few Muslim women study beyond the primary stage and
even fewer beyond the age of 15 years.” So education is the most important
tool for reducing disempowerment of Muslim women
 No doubt many welfare schemes for the welfare of women have been
devised in post-independent India. But the benefits of these schemes did not
percolate down to Muslim women. They have also been deprived of welfare
schemes exclusively designed for raising their status. For, either these are
insubstantial or implemented ineffectively. For example, ‘Area Intensive’
scheme was launched in 1992 for promoting primary and secondary level of
education in 325 Minority Concentration Blocks/tehsil of 89 districts of the
country. Opening of ‘multi stream residential schools for girls was one of the
components of the scheme. State governments and voluntary organizations,
through which this centrally funded schemes was supposed to be
implemented, did show little concern to translate the scheme into reality.
The fund of the scheme was either diverted to other purpose or lapsed. Only
a few multi stream residential schools for girls were opened, that too in
South India Thus, it is evident that the real source of Muslim women’
disempowerment lie in their lowest level of education, economic
impoverishment and deprivation of welfare schemes. Their endemic
illiteracy and poverty made them vulnerable to many patriarchal beliefs and
practices. Hence, government protection-reservation and welfare schemes
exclusively for them-is urgently needed for their empowerment.
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