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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Artile
A critical comparison of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 and the Code of Criminal Procedure

There is a great deal of controversy as to whether the provisions of sections 125 to 127 of CrPC or the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ( hereinafter referred to as MWPRDA ) is more beneficial to divorced Muslim women in securing their right to maintenance. It is submitted that the MWPRDA is more beneficial to a divorced Muslim woman in obtaining maintenance from her husband. After the Supreme Court's judgment in Md. Ahmed Khan v. Shah Bano Begum, 1 the Parliament passed the MWPRDA to protect the rights of Muslim women who have been divorced by, or obtained divorce from, their husbands and to provide matters connected therewith or incidental thereto. 2 Under section 5 of the MWPRDA there is a choice to be governed by the provisions of sections 125 to 128 of CrPC or the MWPRDA. Also, section 3 of the MWPRDA provides that the husband has to provide a reasonable and fair provision and maintenance to be made and paid to the divorced wife within the iddat period and beyond. As per the decision of the Supreme Court in Daniel Latifi v. Union of India , 3 this provision is mandatory. No such time frame is given in CrPC for providing maintenance to the divorced wife. Again, under the MWPRDA in addition to maintenance to the divorced wife provision is to be made for her, which includes clothing, fooding and lodging. Further, section 3(3) of the MWPRDA provides that the husband has to pay provision and maintenance to the divorced wife having regard to her needs, the standard of life enjoyed by her during her marriage and the means of the husband. Section 4 of the MWPRDA provides that if the husband fails to provide maintenance and provision he will face imprisonment for one year. But under section 125(3) of CrPC the punishment for the same is imprisonment for one month only. Under the MWPRDA in addition to the husband of the divorced wife there is mandate to provide maintenance to the divorced women by her children, relatives, parents, or in case of their incapability to provide such maintenance, the Wakf Board. Such provisions are lacking in CrPC. In the case of Smt. Nasra Begum v. Rizwan Ali , 4 the Allahabad High Court held that Mahr or Dower means money or property which is consideration for marriage and given to the wife by her husband. Thus, Dower is not to be equated with maintenance or provision and providing Dower does not free the husband from his liability to provide maintenance and provision to the wife.

In conclusion, it can be said that under the MWPRDA the right of divorced Muslim women to get maintenance are better protected. This Act justifies the right to life of such women given under the Constitution which right does not mean a mere animal existence.

*Faculty, Haldia Law College

  1. 1985 CrLJ 875.
  2. Preamble of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
  3. (2001) 7 SCC 760.
  4. AIR 1980 All 119.

 

 
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