Divorce!!, Dignity, Maintenance and Empowerment.
Viqas Malik and Romaan Muneeb
Anyone who seeks remedy under Law anticipates an effective and speedy redressal of grievances. To cater this hope, the Legislature often endeavours to design special laws, procedures and adjudicatory fora for speedy adjudication of disputes, especially for the more vulnerable. One of the issues has been the dismay and despair of the women in our society and the legislature has been more empathetic with the plight of women who face difficulties due to troubled marriages. There are various statutes, which ensure protection of women as also their rights. In fact the Magna Carta of these welfare legislations lays in the Constitution of India, Article 15 (3) to be more specific.
The Muslim Women (Protection of Rights on Divorce) Act, 1986, The Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 etc. were introduced decades ago and have been tailored time and again to ensure their effectiveness. However, the women of Jammu and Kashmir could not exercise many rights like their sisters in the other parts of the country due to parallel Constitutional structure and failure of the male dominated State Legislature to ratify these laws. Hence, the women of J&K could never really ensue any benefit out of these legislations, which otherwise equipped their sisters with special rights and protection where the marriages failed to work.
As far as maintenance and domestic violence are concerned, the women here only had remedy under the traditional law- The J&K Code of Criminal Procedure, which addressed the issue theoretically but lacked tangible effectiveness. Additionally, the traditional law lacked remedies like residency rights for women, custody of children, protection orders etc. Nonetheless, with the introduction of Jammu and Kashmir Reorganisation Act 2019, the central regime extended various important legislations to J&K and as far as maintenance and domestic violence are concerned, the extension of The Muslim Women (Protection of Rights on Divorce) Act, 1986, The Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 and The Dissolution of Muslim Marriage Act etc. which are now applicable to J&K as well, will play a pivotal role in delivering justice swiftly and effectively.
Women here will now be entitled to claim maintenance not only under section 125 of the Code of Criminal Procedure, 1973 (formerly Section 488 of J&K- Cr.P.C) but also under section 3 of the Muslim Women (Protection of Right on Divorce) and also under the Domestic Violence Act, 2005. This law provides for a triangular protection with right to claim maintenance from Husband, relatives and also the Waqf Board. Section 3 of the Act entitles a woman for maintenance on divorce to be paid by her husband. Interestingly, the scope of iddat was interpreted by the Supreme Court in Danial Latifi v. Union of India, wherein it was held that the maintenance is to be paid not only for iddat period but beyond it also and as such iddat period is only the time given to the husband to arrange for maintenance of wife. The Supreme Court held that “However, this maintenance is not limited only for the iddat period but extends to her whole life unless she remarries. Husband is obliged to provide a reasonable and fair provision in addition to maintenance to contemplate the future need of ex-wife”. This position that the maintenance is not only for iddat period but for entire life was again reiterated by the Supreme Court in its 2004 Judgment of Sabra Shamim, wherein it was held that “A divorced Muslim wife is entitled to maintenance not merely until the completion of the iddat period, but for her entire life unless she remarries”
The Act also provides a mechanism whereby the divorced Muslim wife can claim Mahr or agreed dower together with all properties given to her before or after the marriage by her relatives, friends, husband, and relatives of the husband or even his friends. If the husband fails to provide her maintenance, Mahr, or belongings etc. the women can approach the Court to claim the same.
Pertinently, the claim for maintenance can be filed even after the iddat period is over. The Supreme Court in Shabana Bano’s case answered this proposition and held that “even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C after the expiry of period of iddat also, as long as she does not remarry.”
Now coming to another important legislation i.e. The Domestic Violence Act, 2005 which aims to provide effective protection to women who are victims of violence in the family. At the cusp of its materialisation, there was perplexity with respect to its applicability on Muslims. However, the same was soon clarified by the Supreme Court Juveria Abdul Majid Patni’s case where it was held that the DV Act would be available to Muslim women also in absence of any specific exclusion. The Bombay high court was also pleased to pronounce a verdict on similar lines in of Bombay Ali Abbas Darulwala in 2018 clarifying the application of the said Act on Muslim women as well
The DV Act also has provisions for maintenance and custody of children. This law also provides for residency rights and can be availed for protection orders as well. Although the strongest arm of this law is considered to be Section 17, which provides women with the right to reside in share household (matrimonial home). This law not only applies to the subsisting disputes but also disputes which have taken place in the past. As has been held in the case of Juveria Abdul Majid Patni (Supra), wife would be entitled to file proceedings under Section 12 of the Act in respect of the past domestic violence. The following observations from paragraph 30 of the judgment are imperative for real understanding:
“30. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, child custody under Section 21, compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005.”
The applicability of the aforesaid laws to J&K will surely bring about a change in the life of women who suffered and continue to suffer because of turbulent matrimonial life and had been surviving on the mercy of near and dear ones. The extension of the Family Court Act, 1984 to J&K will also bring about a positive change in redressing the disputes between spouses as the act provides mechanism of counselling, participation of social welfare agencies and promotion of welfare of families.
The Authors Viqas Malik & Romaan Muneeb are Lawyers at the J&K High Court. The Authors can be reached at firstname.lastname@example.org