The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others, has held that if the divorced woman is able to maintain herself, the husband's liability ceases with the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance to the divorced wife. The Muslim Women (Protection of Rights on Divorce) Act was passed to dilute the judgement given in the decision of Shahbano case.
If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.
COMPARATIVE CHART-BROAD OUTLINE
|Muslim Women(Protection of Rights on Divorce) Act 1986||Section 125 Code of Criminal Procedure|
|Jurisdiction||Application is filed in the area where divorced woman resides||Application where the husband is, or resides or where he last resided with his wife|
|Relief available||Reasonable and fair provision and maintenance, or the amount of mahr or dower paid, all properties given at the time of marriage or after marriage. If unable to maintain herself, after Iddat period relatives ordered to pay maintenance and if no relatives exist then Warf board pays.||Allowed a monthly allowance, not exceeding Rs.500. No provision for maintenance by children, relatives or Wakf Board after Iddat period.|
|Punishment on failure to pay||Imprisonment which may extend to one year.||Imprisonment which may extend to one month.|
|Applies to||Only to divorced woman||To every married or divorced woman.|
|Alteration /allowance||No such Provision.||On change of circumstances Alteration maybe made.|
|Maintenance after Iddat||Woman to be maintained by her children or parents or relatives or the Warf board.||No such provision.|
A divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in accordance with Muslim law.
Iddat period means in the case of a divorced woman
PROVISIONS OF THE ACT
A senior citizen includes parents who are unable to maintain themselves through their own earnings or out of their own property, may apply for maintenance from their adult children or any legal heir (who is in possession of or is likely to inherit their property) of the childless senior citizen. This maintenance includes the provision of proper food, shelter, clothing and medical treatment.
Parents include biological, adoptive and stepmothers and fathers, whether senior citizens or not.
A Muslim woman at the time of divorce is entitled to the following
The proceedings under the provision of the Act may be taken against any children or relative in any district:-
APPLICATION FOR MAINTENANCE
she, or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
Where an application has been made by a divorced woman and the Magistrate is satisfied that
he may make an order, within one month of the date of the filing of the application, directing her former husband to
No appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative.
If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may
As per the provision of the Act, a senior citizen can seek to revoke any property, which has been transferred in favour of children/relative on the condition that such children/relative would provide maintenance to him but are not providing the same. The tribunals are empowered to declare such transfers as void on the applications of such parent.
OFFENCES AND PROCEDURE FOR TRIAL
PROVISIONS FOR MEDICAL CARE OF SENIOR CITIZEN
The Act provides that the State Government shall ensure
Ongoing transition in the families today, as a result of changes in the cultural contours in the society has posed several challenges to the elderly care in the society. There is crisis in the institution of family, which carries special significance to the care of elderly people. The State Government is required to set up one or more tribunals in every sub-division. It should also set up Appellate Tribunals in every district to hear the appeals of Senior Citizens against the decision of the Tribunals. State Governments should set up at least one Old Age Home for every 150 beneficiaries in a district. These homes are to provide Senior Citizens with minimum facilities such as food, clothing and recreational activities. All Government hospitals or those funded by the Government must provide beds for Senior Citizens as far as possible. Also, special queues to access medical facilities should be arranged for them.
Where the Magistrate is satisfied that
He may make an order directing her relatives, who would be entitled to inherit her property on her death, according to Muslim law, to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.
WHERE THERE ARE CHILDREN
Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
WHERE PARENTS ARE UNABLE TO PAY
If any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him, be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
WHERE DIVORCED WOMAN HAS NO RELATIVES
Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or any one of them have not enough means to pay the maintenance ordered by the Magistrate, the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the woman resides,
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