Critical Study of Iddat

Iddat

In Islam, Iddat is the term to mean “by completion of which a new marriage is rendered lawful”. It is the period for which a woman is incumbent to observe after the death of her husband or after divorce. In this period she is not allowed to marry. The reasons for observing iddat are:

• To ascertain the pregnancy of the widowed or divorced woman (in both cases of death of husband and divorce): This reason is one of the most important reasons, because if there is no iddat period and the widowed or divorced woman marries another man or is consummated during such period and falls pregnant, it would be hard to determine the father of the child. So, the observation of such period ensures that there is no confusion in the parentage of the child.

• To provide an opportunity to dissolve or revoke the talak (in case of divorce): Family as an institution is given a great value in Islamic law. So, due to this period, the husband gets ample time to think whether his decision to divorce his wife is right and he has an opportunity to take it back. Thus, this period provides an opportunity to save a family from breaking up.

• To provide a period of mourning for the deceased (in case of death of husband): This period provides ample time for the widow to mourn for her deceased husband. It also makes sure that by not marrying during this period, she is not subject to ridicule in society.

Period of iddat

• In case of dissolution of marriage by divorce

1. If the marriage is dissolved by divorce and the consummation has taken place, the duration of the iddat period is three months. It is felt by the jurists that at least three menstrual cycles are essential to observe whether a woman is pregnant or not and as a menstrual cycle takes place once every month, the duration is three months. And if during this time she becomes pregnant her period of iddat would extend till the delivery of her child.

2. If a marriage is dissolved and consummation has not taken place, the divorced woman is not required to observe iddat as there is no chance of her being pregnant.

3. If the divorced woman is pregnant at the time of divorce, her iddat period continues till the delivery of the child.  

• In case of dissolution of marriage by the death of the husband

1. If a marriage is dissolved by the death of the husband, the widowed wife has to observe iddat for a duration of four months and ten days. In this case, it does not matter whether consummation took place or not. 

2. If the woman in this period becomes pregnant, then her iddat period extends till the delivery of her child.

• Death of husband during iddat (where iddat was due to divorce)

In the case where a woman is divorced by her husband and is observing divorce, an iddat of three months will be observed. If during this time her husband dies, she has to observe a fresh iddat of four months and ten days from the day of the death of the husband.

• Commencement of iddat

The period of iddat begins from the date of actual divorce or death of the husband and not from the date on which the information reaches the wife. So, if the information of divorce or death of the husband reaches the wife after the commencement of the iddat period, then she need not observe iddat.

Under Shia law, a woman is not of the age of childbearing (old or before reaching puberty) or if her menstruation is irregular or absent, then it is not required to observe iddat. A marriage with a woman undergoing iddat is irregular, not void.

Valid Retirement (Khilwat-us-Sahina)

If the husband and wife have some time in privacy together under circumstances where there is no present legal, moral or physical impediment on intercourse then they are said to be in a valid retirement. The implication of such retirement is that there has been consummation between the husband and the wife.

Under Sunni law, valid retirement has the effect of actual consummation for dower, paternity of a child, etc and for observance of iddat also. This means that a wife has to observe iddat even if it is not proved that actual consummation has taken place but valid retirement is proved.

Under Shia law, valid retirement has no such effect and is not recognised as actual consummation. This means that unless it is proved that the wife had actual consummation with her husband, she cannot be made required to observe iddat.

Iddat Under Statute

The latest statute under which iddat has been defined is the Muslim Women Act, 1986. Section 2(b) of this act states-

“iddat period” means, in the case of a divorced woman

1. Three menstrual courses after the date of divorce, if she is subject to menstruation;

2. Three lunar months after her divorce, if she is not subject to menstruation; and

3. 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;”

Case Laws on Iddat and Subsequent Maintenance 

Mohd. Ahmad Khan v. Shah Bano Begum

Shah Bano was a woman aged 62 who was divorced by her husband in 1978 and was subsequently denied maintenance. She had five children too and she was unable to support herself and the children. So, she filed a case against her husband for maintenance in the court of Judicial Magistrate under section 125 of CrPC claiming Rs. 500 as maintenance. She was granted maintenance of only Rs. 25 with which she was not happy and went to the high court claiming higher maintenance.

She was granted a maintenance Rs. 179.20 with which her husband was not happy and he appealed to the Supreme Court against this order. His main contention was that since the dissolution of marriage had taken place, she cannot claim maintenance as under Muslim law, which stated that once a woman ceases to be a wife of her husband, she is not entitled to maintenance. And the maintenance of the woman is the responsibility of her husband only during the iddat period. In the present case, Mr Khan paid the dower at the time of the iddat period and thus claimed that his wife is not entitled to any maintenance.

The Supreme Court bench of five judges headed by Justice Chandrachud upheld the decision of the High Court. The court gave a landmark judgement by declaring that a husband would be liable to pay maintenance to his wife even after iddat if the wife is unable to support herself under section 125 of the CrPC and if she is able to support herself the maintenance would stop post iddat.

The Supreme Court also interpreted Quran and stated that there is no conflict between the Muslim Personal law and section 125 of CrPC (as claimed by Mr Khan) as even under Muslim law, a husband is supposed to maintain her divorced wife. Further, the Supreme Court gave the argument that even if it is assumed that there is a conflict between Muslim Personal law and section 125 of the CrPC, the law of the CrPC shall prevail because it is a secular law and is at a higher pedestrian as compared to any personal law. As CrPC is a secular law, it could be applied to any person irrespective of their religion. Justice Chandrachud stated -

“It would be incorrect & unjust to extend the rule of maintenance under Muslim Law to the cases in which the divorced wife is unable to maintain herself, so if the divorced wife is able to maintain herself, the husband’s liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of Cr. P.C.” 

Thus, the Supreme Court settled the law on maintenance of Muslim women by declaring that a divorced woman is entitled to claim compensation even after iddat if she satisfies two grounds -

1. She is not able to support herself
2. She has not remarried.

There was a huge uproar against this decision of the Supreme Court by the Muslim community which felt that the decision being a secular one was one encroaching upon the Muslim Sharia law and thus, they demanded a uniform civil code. As a result of this uproar against the Supreme Court’s decision, the then Rajiv Gandhi government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to nullify the effect the Shah Bano judgement. 

According to the section 3(1)(a) and section 4(1) (relevant provisions) of the Muslim Women Act, a divorced Muslim woman is entitled to “reasonable and fair provision” and maintenance by her husband only “within iddat period” and if she is not able to support herself after iddat, her relatives would be asked to take her. And if she does not have relatives who could maintain her, the Judicial Magistrate would order the Waqf Board of the state to pay her maintenance under section 4(2) of the Muslim Women Act.

Interventions by various High Courts

This act had become another pillar of controversy as the implementation of this act differed between different high courts. In the case of Abid Ali v. Rasina Begum, the Rajasthan High court interpreted the section 3(1) of the Muslim Women Act, 1986 stating that the divorced women have right to claim maintenance only for the period of iddat and not beyond that.

Further in the case of Usman Khan Bahamani v. Fathimunnisa Begum, the Andhra Pradesh High Court also held that a Muslim woman is subject to maintenance only within the period of iddat. Furthermore, the court interpreted the word “within” in section 3(1) of the Muslim Women Act very narrowly. The court stated that a husband is only liable to fair and reasonable maintenance within the iddat period and only for the iddat period.

In the case of A. A. Abdulla v. A. B. Mohmuna Saiyadbhai, the Gujarat High Court interpreted the Muslim Women Act differently than the previously judgements and thus creating a huge controversy in the implementation and interpretation of the said act. The High Court held that a divorced Muslim woman has the right to claim maintenance from her husband for even beyond the iddat period. The Court further interpreted the word “within” in section 3(1) of the Muslim Women Act more broadly. The court held that the husband has to pay maintenance for the present and future of his divorced wife even after the period of iddat and has to pay it within the period of iddat.

Intervention by the Supreme Court

Danial Latifi v. Union of India

Following the highly controversial Muslim Women Act, 1986, there was a writ filed under section 32 of the Indian constitution challenging the constitutional validity of the Muslim Women Act. The court upheld the validity of the Muslim Women Act and held it not to be violative of article 14, 15 and 21 of the Indian constitution.

The court also interpreted the act in a very different way. They read the term “within” in section 3(1)(a) of the act with “fair and reasonable provision” and thus interpreting it as the maintenance is fair and reasonable it cannot be within the iddat period and should exceed it and must be made within the iddat period.

It can be simply understood that the husband is to maintain the wife for the future also and instead of giving the maintenance in parts he has to give it before the commencement of the iddat period. And thus the liability of the husband is not limited to the iddat period making the situation equitable.

The court in the present case has also laid stress on the preamble of the Muslim Women Act which states that it is the goal of the present act to uplift the status of women and thus the court has interpreted it in favour of women as in the case A. A. Abdulla v. A. B. Mohmuna Saiyadbhai.

The court held - “the word 'provision' indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce, the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles.

The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife”

The court held that the term “within” section 3(1) stands for ‘on’ or ‘before’ and not for ‘during’ or ‘for’.  Thus, the court is implying that the word within is used for the payment of the maintenance and not for the determination of the amount of such maintenance.

The Supreme Court has rejected the narrow interpretation of section 3 of the Andhra Pradesh High Court stating that as the motive or aim of the Muslim Women Act is to promote and favour women, it’s interpretation should be done respectively unless something contrary is stated which is not the case in the present act.

Thus, the Supreme Court has interpreted in favour of the women. Thus, the Muslim Women Act is held not to be violative of any of the fundamental rights and the appeal stands dismissed 

Further, in its latest judgement on the Muslim Women Act, the court has followed its previous decision (Danial Latifi case). In Iqbal Bano v. the State of UP, the Supreme Court has interpreted section 4 of the Muslim Women Act under which the relatives have to maintain such divorced women after the iddat period. The court has held that the reasonable and fair provision maintenance can only be claimed against the former husband and not against the relatives.

In Shabana Bano v Imran Khan, a Muslim divorced woman can claim compensation under section 125 of CrPC, after the expiry of iddat period also.

Conclusion

Iddat is a practice that Muslim women perform to ascertain pregnancy and parentage of a child born of such pregnancy. According to the Muslim Personal laws, a husband is required to maintain his wife only during the iddat period and after the commencement of iddat, the woman is on her own. In the Shah Bano case, the Supreme Court went against the convention and allowed for maintenance even after the iddat period.

Due to this, there was furore in the Muslim community and a new law, Muslim Women Law, 1986 was adopted to nullify the decision of the Shah Bano case. Further, this act had its controversy in the High Court but the Supreme Court settled the law by interpreting it in favour of the wife.

It can be seen that now under Muslim law it is clear that a husband has the responsibility to maintain his former wife even after the commencement of iddat period irrespective of the economic condition of women (even a step ahead of Shah Bano judgement). The status of women has been raised by the judiciary in a male-dominated society and it has been made clear that women also have equal status in a patriarchal society like India.