(25 of 1986)(19th May, 1986)
An Act to protect the rights of Muslim women who have been divorced by, or have
obtained divorce from, their husbands and to provide for matters connected
therewith or incidental thereto.
BE it enacted by Parliament in the Thirty-seventh year of the Republic of India
as follows :
1. Short title and extent:
(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 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 ;
(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 under the Code of Criminal Procedure, 1973 (2 of 1974) in the area
where the divorced woman resides ;
(d) "prescribed" means prescribed by rules made under the 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 the 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 her 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
or her divorce, she or any one duly authorised by her may, on her behalf, make
an application to the 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 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 sub-section (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
sub-section (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 for 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 a 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 byher 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 period 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 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 :
2) Where a divorced woman is unable to maintain herself and she has no
relatives, 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 share of those relatives
whose shares have been ordered by the Magistrate to be paid by such, other
relatives under the second proviso to sub-section (1), the Magistrate may, by
order, direct the State Wakf Board established under section 9 of the Wakf Act,
1954 (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 sub-section (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 sub-section (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.
6. Power to make rules. (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 the serving of notices to
the parties to such applications, 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 the Act shall be laid, as soon as may be after it is made, beforeach
House of Parliament, while it is in 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 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 1984) pending before a
Magistrate on 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.
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