THE MUSLIM WOMEN (PROTECTION OF RIGHTS
ON DIVORCE) ACT, 1986
2. Definitions.
3. Mahr or other
properties of Muslim woman to be given to her at the time of divorce.
4. Order for
payment of maintenance.
5. Option to
be governed by the provisions of section 125 to 128 of Act 2 of 1974.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS
ON DIVORCE) ACT, 1986
(Act No. 25 of 1986)
[19th
May 1986]
An Act to protect the rights of
Muslim woman who have been divorced by, or have obtained divorce from their
husbands and to provide for matter connected therewith or incidental thereto.
Be it enacted by Parliament in the Thirty-seventh year of the Republic
of India as follows: -
(1)
This Act may be called the Muslim Women (Protection of Rights on Divorce) Act, 1986.
(2)
It extends to the whole of India except the
State of Jammu and Kashmir.
2. Definitions. -In this Act, unless the
context otherwise requires. -
(a) “Divorced
woman” means a Muslim woman who was married according to Muslim law, and has
been divorced by, or has obtained divorce from her husband in accordance with
Muslim law;
(b) “Iddat
period” means in the case of a divorced woman. -
(i) Three
menstrual courses after the date of divorce, if she is subject to menstruation;
and
(ii) Three
lunar months after her divorce, if she is not subject to menstruation; and
(iii)
If she is enceinte at the time of her divorce,
the period between the divorce and the delivery of her child or the termination
of her pregnancy whichever is earlier;
(c) “Magistrate”
means a Magistrate of the First Class exercising jurisdiction wider the Code of
Criminal Procedure 1973 in the area where the divorced woman resides.
(d) “Prescribed”
means prescribed by rules made under this Act.
3. Mahr or
other properties of Muslim woman to be given to her at the time of divorce. -
(1) Notwithstanding
anything contained in any other law for the time being in force, a divorced
woman shall be entitled to-
(a) A
reasonable and fair provision and maintenance to be made and paid to her within
the iddat period by her former
husband:
(b) Where
she herself maintains the children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her former
husband for a period of two years from the respective dates of birth of such
children:
(c) An
amount equal to the sum of mahr or dower agreed to be paid to her at her
time of her marriage or at any time thereafter according to Muslim law; and
(d) All the
properties given to her before or at the time of marriage or after the marriage
by her relatives or friends or the husband or any relatives of the husband or
his friends.
(2) Where a
reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made
or paid or the properties referred to in clause (d) of sub-section (1) have not
been delivered to a divorced woman on her divorce, 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.
(3) Where
an application has been made under sub-section (2) by a divorced woman the
Magistrate may; if he is satisfied that-
(a) Her
husband having sufficient means, has failed or neglected to make or pay her
within the iddat period a reasonable
and fair provision and maintenance for her and the children; or
(b) The
amount equal to the sum of mahr or
dower has not been paid or that the properties referred to in clause (d) of
sub-section (1) have not been delivered to her,
make an order, within one month of the date of the filing of the application,
directing her former husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may determine as 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 her former husband or, as the case may be,
for the payment of such mahr or dower
or the delivery of such properties referred to in clause (d) of subsection (1)
to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the
application within the said period, he may, for reasons to be recorded by him
dispose of the application after the said period.
(4) If any
person against whom an order has been made under subsection (3) fails without
sufficient cause to comply with the order, the Magistrate may issue a warrant
for levying the amount of maintenance or mahr
or dower due in the manner provided for levying fines under the Code of
Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole
or part of any amount remaining unpaid after the execution of the warrant, to
imprisonment of a term which may extend to one year or until payment if sooner
made, subject to such person being heard in defence and the said sentence being
imposed according to the provisions of the said Code.
4. Order
for payment of maintenance. -
(1) Notwithstanding
anything contained in the foregoing provisions of this Act or in any other law for
the time being in force, where the Magistrate is satisfied that a divorced
woman has not re-married and is not able to maintain herself after the iddat period, he may make an order
directing such of her relatives as 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:
Provided
that 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:
Provided
further that if any of the parents is unable to pay his or her share of
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.
(2) Where a
divorced woman is unable to maintain herself and she has no relative as
mentioned in sub-section (1) or such relatives or any one of them have not
enough means to pay the maintenance ordered by the Magistrate or the other
relatives have not the means to pay the shares of those relatives whose shares
have been ordered by the Magistrate to be paid by such other relatives under
the proviso to subsection (1), the Magistrate may, by order direct the State
Wakf Board established under Section 9 of the Wakf Act, (29 of 1954), or under
any other law for the time being in force in a State, functioning in the area
in which the woman resides, to pay such maintenance as determined by him under
subsection (1) or, as the case may be, to pay the shares of such of the
relatives who are unable to pay, at such periods as he may specify in his
order.
5. Option
to be governed by the provisions of Section 125 to 128 of Act 2 of 1974. -If, on the date of the first hearing of the
application under subsection (2) of Section 3, a divorced woman and her former
husband declare, by affidavit or any other declaration in writing in such form
as may be prescribed, 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, 1973 (2 of 1974); and file such affidavit or declaration in the
Court hearing the application, the Magistrate shall dispose of such application
accordingly.
Explanation. - For the purposes of this
section, “date of the first hearing of the application” means the date fixed in
the summons for the attendance of the respondent to the application.
(1)
The Central Government may, by notification in
the Official Gazette, make rules for carrying out the purposes of this Act.
(2)
In particular and without prejudice to the
foregoing power, such rules may provide for-
(a) The form
of the affidavit or other declaration in writing to be filed under Section 5;
(b) The
procedure to be followed by the Magistrate in disposing of applications under this
Act, including of notices to the parties to such application, dates of hearing
of such applications and other matters:
(c) Any
other matter which is required to be or may be prescribed.
(3) Every
rule made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is session, for a total period of
thirty days which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following the session
or the successive sessions aforesaid, both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be made,
the rule shall, thereafter, have effect only in such modified form or be of no
effect, as the case may be, so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously
done under that rule.
7. Transitional provisions. - Every
application by a divorced woman under Section 125 or under Section 127 of the
Code of Criminal Procedure, 1973 (2 of 1974), pending before a Magistrate or
the commencement of this Act, shall, notwithstanding anything contained in that
Code and subject to the provisions of Section 5 of this Act, be disposed of by
such Magistrate in accordance with the provisions of this Act.