By-  Majlis

It has been an uphill task for us to  convince the magistrates that a divorced Muslim woman is not excluded from the ambit of the Protection of Women from Domestic Violence Act, 2005 (PWDVA). Each time we file for reliefs for divorced Muslim women for protection, residence, return of her belongings, maintenance and for a fair and reasonable settlement, clubbing two different beneficial legislations i.e. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA) and PWDVA, we are confronted with the question whether provisions of PWDVA can be clubbed with MWA and more generally, whether divorced women can claim relief under PWDVA for residence and protection as this violates the provisions of Islamic law.

Gradually, magistrates were convinced about our persuasive arguments and started awarding interim orders of protection, residence and maintenance under PWDVA. These interim orders helped us to negotiate with the husband for a lump sum “fair and reasonable settlement” under MWA. This was an innovative strategy which paid great dividends and helped us to arrive at a speedy resolution to the problem faced by divorced Muslim women.

But recently, when a husband approached the High Court by way of a writ petition for quashing the application filed by the wife, we got an opportunity to argue our point in the High Court. Since there were two contradictory single judge rulings regarding a divorced woman’s right to claim reliefs under PWDVA the judge who heard the case was inclined to refer the case to a division bench.

We argued the matter for several days and convinced the Judge about Muslim women’s rights both under PWDVA and MWA. The writ petition was dismissed at the stage of admission itself.

We consider it a major victory to the cause of Muslim Women. Since this will not be a reported judgement, we would like to share the issues that surfaced and the case law that we relied upon.

For non maintainability of proceedings under S.482 of Cr.PC for quashing, we relied upon a judgement of the Bombay High Court, Mangesh Sawant vs Minal Bhosale, (5th October 2011) wherein the court had held that proceedings under S. 482 must be used sparingly and only as a last resort in cases under PWDVA.

On the issue of a divorced Muslim woman’s right under PWDVA we relied upon Priya vs Shibhu, [2008 (3) KLJ 304] wherein the Kerala High court had upheld the divorced woman’s rights under the Domestic Violence Act. This judgement contains detailed discussion on definition of “aggrieved woman”, “respondent”, “shared household”, “domestic relationship” etc. This judgement has dealt in detail the grammatical implications of the term, “has been” to emphasize that the law will apply to all divorced women. The argument for the husband was that the term, “has been” should be understood with regards to it being in the present perfect tense, but the Kerala High Court had rejected this contention and upheld the claim of the divorced Muslim wife.

We also relied upon Karimkhan vs Nahid Akhtar 2011 Cri.LJ 4793, a judgement of the Bombay High Court which specifically dealt with the retrospective effect of the Domestic Violence Act. While deciding this case, the court considered the earlier two contradictory rulings of the Bombay High Court which had dealt with the issue of rights of divorced women under PWDVA and commented that an interpretation which furthers the purpose of the Act must be preferred to the one which obstructs the object and paralyses the purpose of the Act.

We also argued that PWDVA is secular and there is nothing in the Act which prevents a Muslim woman from claiming reliefs under it. Further the beneficial legislation has to be construed in a liberal way which would further the purpose of the Act rather than defeat its purpose. The following cases were also helpful in advancing our arguments on behalf of the divorced Muslim woman:

Razzak Khan vs Shahnaz Khan, 2008 (4) MPHT 413 M.P. HC
Syed Mohd Nadeem vs State Delhi HC, 15th June 2011
Rajkumar Pandey vs Sarita Pandey, 2008 (6) Bom CR 831
Saraswathy vs Babu (Madras HC 13th December 2011)

from- Majlis,
Tel: 022 26661252 / 26662394