MAINTENANCE AND CUSTODY OF CHILDREN

DAY 26

MAINTENANCE AND CUSTODY OF CHILDREN

What are the provisions regarding maintenance during marriage?

Maintenance as per the draft law of BMMA, includes an entitlement to food, clothing, residence, educational and medical expenses and all other personal expenses of wife. Since there is no comprehensive codification of Muslim law, some parts of maintenance like the post-divorce maintenance got codified in 1986, while the maintenance during marriage is left hanging in the air. Hence it is important to legally pin down where exactly a Muslim woman should go to claim her maintenance during marriage. In the absence of a codified law, she is entitled to maintenance under the law of the land. 

• The responsibility of maintaining the wife and children, even if she has an independent source of income is with the husband. 
• During the process of arbitration, the maintenance of the wife and children will be the responsibility of the husband. 
• During the subsistence of the marriage, if the custody of the child is with the mother then the responsibility of maintenance of the child is with the husband.
• Procedure for obtaining maintenance from the husband during the subsistence of marriage is the same as enlisted in S-125 Cr.PC. 
• The widow has a right to maintenance and right to stay in matrimonial home.
• Maintenance during iddat period is the same as that provided during the subsistence of the marriage 

What are the provisions regarding maintenance after divorce?

• The provisions of maintenance after divorce are to be governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. 
• A divorced woman is entitled to stay in her matrimonial home.
• All matters related to dower, jewelry, household items, maintenance of the women and children, inheritance, custody, education of children, residence of divorced women must been amicably and fairly settled. 

What are the Quranic verses on maintenance?

• ...And on the child "s father (the husband) is their food and clothing... (2:233)
• And for divorced women is a provision according to what is acceptable – a duty upon the righteous (2:241).
• “And those who are taken in death among you and leave wives behind – for their wives is a bequest: maintenance for one year without turning (them) out. But if they leave (of their own accord), then there is no blame upon you for what they do with themselves in an acceptable way. And Allah is Exalted in Might and Wise.” [2:240]
• “Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in an acceptable way; but if you are in discord, then there may breastfeed for the father another woman.” [65:6]
• “Let a man of wealth spend from his wealth, and he whose provision is restricted – let him spend from what Allah has given him. Allah does not charge a soul except [according to] what He has given it. Allah will bring about, after hardship, ease.” [65:7]

What are the provisions regarding custody of children?

• According to this draft law, both mother and father are considered natural guardians of the child. 
• In the event of a divorce, regardless of who amongst the spouse initiates the divorce, the decision regarding the custody of all children (male and female) will reside with the mother until they reach the age of 10 when the child can decide for himself/herself. In any case it is the responsibility of the father to provide maintenance for the child. 
• After reaching the age of 10 the parent not having the custody can apply for custody of the child to an Arbitrator. 
• The consent of the child will be sought by the Arbitrators.
• The parent who has lost the custody of the child will get fair visiting rights. 
• Only if the child is not able to take a decision the Arbitrators shall take the decision based on the principle of the best interest of the child which includes the child's physical, emotional and economic security. 
• In the event when the custody of the child is with the mother, it is the responsibility of the father to financially maintain the child. 

What are the provisions regarding the custody of the children of widows?

The mother continues to be the natural guardian of the children after she becomes a widow. 

In the event that the child is not able to take a decision the Arbitrators while making a decision should keep the following guidelines in mind: 

• Consider the quality of the upbringing of the child till date 
• The health, education, physical and emotional safety of the child. 

What are the Quranic injunctions regarding custody of children?

There are not too many verses on the same but verse 2:233 suggests no parent shall be subjected to torture for his being the parent of child. 

"The mother shall give suck to their children for two whole years,(that is) for those (parents) who desire to complete the term of suckling, but the father of child shall bear the cost of mother’s food and clothing on a reasonable basis. No person shall have a burden laid on him greater then he can bear. No mother shall be treated unfairly on account of his child, or a father on account of his child. And on the (father’s) heir is incumbent the like of that (which was incumbent on father). If they both decide on weaning, by mutual consent, and after due consultation, there is no sin on them. And if you decide on a foster suckling-mother for your children, there is no sin on you, provided you pay (the mother) what you agreed (to give her) on reasonable basis. And fear Allah and know that Allah is all-seer of what you do"

In what event is the custody of the child is not lost? 

• It is not the case that the custody of the child will be lost if either parent changes its religion or if either parent remarries. It is not automatic that the mother or father will lose custody if they change their religion. 
• Nothing about child’s custody is automatic. 

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 Muslim Women’s Right to Post-Divorce Maintenance

DAY 16

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

Muslim Women’s Right to Post-Divorce Maintenance

This law came in 1986 almost 50 years after the last legislation of 1939/1937, why so?

That is because, from 1937-39, until 1986, for 50 long years, no ulema, religious body, political party, social reformer bothered about Muslim women facing discriminatory practices within the family. Triple divorce, polygamy, underage marriage, halala, muta, unequal inheritance – all continued in the name of religion. Muslim women remained unprotected despite the provisions of her religion and the constitution. Even the women’s movement since the 1970s, fell short of asking for a legislation. Beyond a point they succumbed to the conservative sections of the Muslim community, scared of repercussions and also scared to breach a boundary which did not belong to them, most of them being Hindu, upper caste and upper class. A large section of Muslim women who fought for 1937/1939 legislations migrated to Pakistan after independence and partition. There was no Ambedkar and Nehru within the Muslim community to push for legislation nor did the duo take the lead the way they did for the Hindu community and got 4 set of legislations in 1955-57 for them. 

What led to the passing of the Supreme Court judgement in favour of Shahbanu? 

In 1932 Shah banu was married to Ahmed Khan, a lawyer. They had 5 children. After 14 years of marriage he married another woman. At age 62 she was thrown out of the house by Ahmed Khan. In 1978 she filed a case under CR.PC 125 for maintenance in Indore Court. Same year he orally divorced her and said since he has divorced her, he is not entitled to pay her maintenance. The magistrate asked her husband to pay maintenance. She later went to Madhya Pradesh High court. And later to the Supreme Court against the order of the High Court. The Supreme Court gave the judgement in her favour.

What were the key points of the judgment? 

The judgment established that the Cr.Pc is applicable to all citizens irrespective of their religion. Triple divorce cannot take away the right to maintenance of a divorced Muslim women who is not in a position to maintain herself. It is the responsibility of the Muslim husband to provide maintenance to his divorced wife. And she is entitled to invoke Cr.PC 125. 

What was the impact of this judgment? 

The judgment was criticised by the clerics and various religious bodies and they cited that this judgment was in contravention to the rules of Quran and Islamic laws. There was a big hue and cry and the clerics were out on the roads to deprive Muslim women of her right to access the laws of the land. They wanted a legislation which could overturn the consequences of the judgment. The Rajiv Gandhi government could not resist the pressure from the regressive religious groups and it passed the Muslim Women [Protection of Rights on Divorce Act in 1986. This Act invalidated the Supreme Court judgment. 

What were the main provisions of this Act?

To summarise:

• A divorced Muslim woman was thus entitled to maintenance from her former husband only for a period of 3 months. He had the least liability. 

• It kept Muslim women out of the ambit of law of the country, Cr.PC 125 which ensures maintenance to the wife by husband after divorce.

• It also turned a Muslim woman into a beggar because after 3 months she begs for maintenance first from her relatives who would inherit from her on her death, then her parents, her children and finally from the Wakf Board

• This provision was justified by misquoting and misinterpreting the Quran and thus misleading the community

What was wrong with the law? 

The MWA was passed in1986 under the pressure of regressive religious groups. It took away a Muslim woman’s rights under the laws of the land.  It was passed to supposedly protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands. But it was infact a law which intended to take Muslim women away from her rights as enshrined in the Quran. While the Supreme Court judgement in the Shah Banu case quoted the relevant Quranic verses in favour of post-divorce maintenance, the Parliament passed the said law to nullify the SC’s decision and in fact took away the Muslim women out of the ambit of the Cr. PC 125. A Muslim man could pay the maintenance for just 3 months and go scot free. In one stroke the law took away what a Muslim woman is entitled to not just by her religion but also by the Indian Constitution. 

How did this law go against the Quran? 

We cannot miss the irony here that what Quran ensured through verse 2:241 and which was upheld by the Supreme Court of India, was nullified by the Parliament by passing a law which went against the Quranic provision as well as the protective provision of the constitution. This verse Surah Baqara clears states a divorced women’s right to maintence. 50 years back the British parliament upheld Muslim women’s right to divorce through the 1939 Act and 50 years later the Indian parliament takes her away from her constitutional and Quranic rights. 

This law through its content and process was steeped in patriarchy and a result of an unholy alliance between the political dispensation and religious groups. When this alliance happens, women’s rights are frozen and in fact regressed. It also implied that a secular, liberal and democratic government is not necessarily sensitive about the rights of women who are a minority within a minority. 

What was common/different between these 3 laws; 1937,1939 and 1986

All the three laws had political ramifications. Before independence it helped the Muslim community consolidation which helped the political parties then. Political parties, religious groups, reformers as well as Muslim women backed those legislations. Muslim women had an organised voice. They spoke openly and aggressively about their rights in independently organised forums. Sadly that force melted away with partition. 

In 1986, the reverse was happening. A law was being passed to take away Muslim women’s rights ensured in the Quran and the Constitution. While the 1939 law gave Muslim women the right to divorce, the 1986 law took away her right to post-divorce maintenance. In 1986, it was a lone woman, Shah Banu who fought her lone battle against an apathetic state and an entrenched patriarchal clergy. This time around the political dispensation stood solidly with the clergy. Women’s organisations did support Shahbanu and condemned the passing of the 1986 law. But they were no match for the hooligans having political patronage. 

Were Muslim women not organised then?

While Shahbanu fought her individual battle in the courts, one woman who stood out for her courage in 1984 was Shehnaz Shaikh. She was also a victim of a discriminatory family law and challenged it in the Supreme Court. She also started Awaaz-e-Niswaan, the first ever Muslim women’s organisation in independent India. Her exemplary work in Mumbai initiated much needed debate around the issue of law reform. At great personal risk, she organized Muslim women in the large ghetto of South Mumbai. Both these women took their individual fights to a level where it reflected the community issues. But the political dispensation used the Muslim community against these Muslim women making their work and their survival difficult. But large scale organized force of Muslim women did not exist which could have stood shoulder to shoulder with Shehnaz and Shahbanu. 

What happened to the law later on? 

After the law was passed, there was widespread discontent as it got the Muslim women out of the ambit of Cr. PC 125 which was a common law of maintenance for all Indian citizens, thus endangering the citizenship rights of the Muslim women. It also went against the Quranic provision of post-divorce maintenance. Also many High Courts thereafter came up with conflicting judgments

The issue was put to rest by the Danial Latifi judgment which came in 2000, which interpreted the law thus:

• A divorce women is entitled to maintenance AND a reasonable and fair provision 

• Both have to be paid BY the husband NOT JUST FOR the iddat period but WITHIN iddat period. 

• The payment of maintenance is not just restricted to iddat period but untill she remarries. 

The Supreme Court read the Act with Articles 14 and 15 of the constitution which prevented discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. 

So the Supreme Court came to the rescue again?

Yes it did. This interpretation of the law ensured that Muslim women could ask for maintenance AND provision for future to be paid within iddat period. This interpretation was critical in restoring her rights as a divorced women. 

Reference: 

Legalserviceindia.com