A Legal Insight Into the Lives of the Women of Jammu and Kashmir

Must Read

Should the Exorbitant Amounts Charged for RT-PCR Tests be Refunded?

Introduction A plea has been filed in the Honourable Supreme Court of India seeking a refund of exorbitant amounts charged...

Should CCTV’s be Installed in the Police Station?

Introduction In a recent judgment, the bench led by Justice Nariman issued directions to both the state and Union Territory...

A Legal Analysis of the West Bengal Political Crisis on IPS Deputation

The Ministry of Home Affairs (MHA) has recently summoned three IPS officers of West Bengal (WB). The decision was...

Explained: Postal Ballot for NRIs

At the end of November 2020, Election Commission sent a proposal to the law ministry to amend the Representation...

Explained: Constitutional Provisions and Legislations With Regards to a Person with Disabilities

The world celebrates December 3 as International Day of Persons with Disabilities (IDPD). This day is also called World...

“Pro-Enforcement Bias” Towards Foreign Arbitral Awards Domestically, in light of Vijay Karia and Ors. V. Prysmian Cavi E Sistemi S.R.L and Ors.

International Arbitration faces challenges domestically due to unharmonized local laws for enforcement. Often it may occur that an award...
Malik and Romaan Law Officeshttp://www.malikandromaan.com
Malik and Romaan Law Offices, Kashmir is a full-service Law Firm with its offices in Delhi, J&K and Mumbai

Follow us

Divorce, Dignity, Maintenance and Empowerment

Anyone who seeks remedy under Law anticipates an effective and speedy redressal of grievances. To cater to this hope, the Legislature often endeavours to design special laws, procedures and adjudicatory fora for speedy adjudication of disputes, especially for the more vulnerable. One of the issues has been the dismay and despair of the women in our society and the legislature has been more empathetic with the plight of women who face difficulties due to troubled marriages. There are various statutes, which ensure the protection of women as also their rights. In fact, the Magna Carta of these welfare legislations lays in the Constitution of India, Article 15 (3) to be more specific.

The Muslim Women (Protection of Rights on Divorce) Act, 1986, The Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 etc. were introduced decades ago and have been tailored time and again to ensure their effectiveness. However, the women of Jammu and Kashmir could not exercise many rights like their sisters in the other parts of the country due to parallel Constitutional structure and failure of the male-dominated State Legislature to ratify these laws. Hence, the women of J&K could never really ensue any benefit out of these legislations, which otherwise equipped their sisters with special rights and protection where the marriages failed to work.

As far as maintenance and domestic violence are concerned, the women here only had a remedy under the traditional law- The J&K Code of Criminal Procedure, which addressed the issue theoretically but lacked tangible effectiveness. Additionally, the traditional law lacked remedies like residency rights for women, custody of children, protection orders etc. Nonetheless, with the introduction of Jammu and Kashmir Reorganisation Act 2019, the central regime extended various important legislations to J&K and as far as maintenance and domestic violence are concerned, the extension of The Muslim Women (Protection of Rights on Divorce) Act, 1986, The Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955 and The Dissolution of Muslim Marriage Act etc. which are now applicable to J&K as well, will play a pivotal role in delivering justice swiftly and effectively.

Women here will now be entitled to claim maintenance not only under section 125 of the Code of Criminal Procedure, 1973 (formerly Section 488 of J&K- Cr.P.C) but also under section 3 of the Muslim Women (Protection of Right on Divorce) and also under the Domestic Violence Act, 2005. This law provides for triangular protection with the right to claim maintenance from Husband, relatives and also the Waqf Board. Section 3 of the Act entitles a woman for maintenance on divorce to be paid by her husband. Interestingly, the scope of iddat was interpreted by the Supreme Court in Danial Latifi v. Union of India, wherein it was held that the maintenance is to be paid not only for iddat period but beyond it also and as such iddat period is only the time given to the husband to arrange for maintenance of the wife.  The Supreme Court held that “However, this maintenance is not limited only for the iddat period but extends to her whole life unless she remarries. Husband is obliged to provide a reasonable and fair provision in addition to maintenance to contemplate the future need of ex-wife”. This position that the maintenance is not only for iddat period but for entire life was again reiterated by the Supreme Court in its 2004 Judgment of Sabra Shamim, wherein it was held that “A divorced Muslim wife is entitled to maintenance not merely until the completion of the iddat period, but for her entire life unless she remarries”

The Act also provides a mechanism whereby the divorced Muslim wife can claim Mahr or agreed to dower together with all properties given to her before or after the marriage by her relatives, friends, husband, and relatives of the husband or even his friends. If the husband fails to provide her maintenance, Mahr, or belongings etc. the women can approach the Court to claim the same.

Pertinently, the claim for maintenance can be filed even after the iddat period is over. The Supreme Court in Shabana Bano’s case answered this proposition and held that “even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C after the expiry of the period of iddat also, as long as she does not remarry.”

Now coming to another important legislation i.e. The Domestic Violence Act, 2005 which aims to provide effective protection to women who are victims of violence in the family. At the cusp of its materialisation, there was perplexity with respect to its applicability on Muslims.   However, the same was soon clarified by the Supreme Court Juveria Abdul Majid Patni’s case where it was held that the DV Act would be available to Muslim women also in absence of any specific exclusion. The Bombay high court was also pleased to pronounce a verdict on similar lines in of Bombay Ali Abbas Darulwala in 2018 clarifying the application of the said Act on Muslim women as well

The DV Act also has provisions for the maintenance and custody of children. This law also provides for residency rights and can be availed for protection orders as well. Although the strongest arm of this law is considered to be Section 17, which provides women with the right to reside in a shared household (matrimonial home). This law not only applies to the subsisting disputes but also disputes which have taken place in the past. As has been held in the case of Juveria Abdul Majid Patni (Supra), the wife would be entitled to file proceedings under Section 12 of the Act in respect of the past domestic violence. The following observations from paragraph 30 of the judgment are imperative for real understanding:

“30. An act of domestic violence once committed, the subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, child custody under Section 21, compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005.”

The applicability of the aforesaid laws to J&K will surely bring about a change in the life of women who suffered and continue to suffer because of turbulent matrimonial life and had been surviving on the mercy of near and dear ones. The extension of the Family Court Act, 1984 to J&K will also bring about a positive change in redressing the disputes between spouses as the act provides the mechanism of counselling, the participation of social welfare agencies and promotion of the welfare of families.


The authors, Viqas Malik & Romaan Muneeb, are Lawyers at the J&K High Court. The authors can be reached at [email protected]


Libertatem.in is now on Telegram. Follow us for regular legal updates and judgment from courts. Follow us on Google News, InstagramLinkedInFacebook & Twitter. You can subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Latest News

Petition Filed in Delhi High Court Challenging the New Privacy Policy of WhatsApp

A petition has been raised before the Delhi High Court challenging the updated privacy policy of the instant messaging app, WhatsApp. It is accused of looking into the virtual activities of the users,

Bombay High Court Says Pleas Against the Rejection of Nomination Before the Polls Is Not Maintainable

Bombay High Court on Wednesday held that a candidate cannot challenge his nomination by filing a writ petition before a court prior to the polls after his nominations have already been rejected by the Returning Officer (RO) for the Panchayat elections of January 15.

Bombay HC: It Will Be Difficult if Civic Bodies Don’t Take Action on Illegal Constructions

The Bombay High Court said on Wednesday that if the Municipal Corporations do not take action on the illegal constructions, things will become very difficult. This observation was made by a bench comprising Chief Justice Dipankar Dutta and Justice Girish Kulkarni while hearing a PIL after the Bhiwandi building collapse on September 21st, 2020 which led to the death of 39 lives. Mumbai Thane, Ulhasnagar, Kalyan-Dombivli, Vasai-Virar, Navi Mumbai, and Bhiwandi-Nizampur corporations were filed as respondents.

Uttarakhand High Court Directed State Authorities To Frame SOP Regarding Kumbh Mela 2021

Noticing the commencement date of Kumbh Mela 2021 amid pandemic from 27 February 2021, the Uttarakhand High Court on Monday expressed concern with regard to organizing and conducting of the Mela and directed State Authorities to discuss and resolve the logistical problems which can come in organizing the Mela during the pandemic time.

Writ Petition Not Maintainable Against Mahindra Finance, Being a Purely Private Body: Allahabad High Court

The Allahabad High Court reiterated that Writ Petition against the purely private body is not maintainable and dismissed the petition which was filed against Mahindra Finance Bank as Arif Khan v. Branch Manager Mahindra Finance Sultanpur & Another.

Publication of Notices for Inter-Faith Marriages No Longer Mandatory: Allahabad High Court

The Allahabad High Court has passed a landmark judgment that likely brings relief to inter-faith marriage. The Court on Wednesday said that the mandatory publication of Notices of Inter-Faith marriages will now be optional to protect the Privacy and Liberty of the Couple. The Court observed that the publication of the notice would “invade the fundamental rights of liberty and privacy”. Therefore, it has made it optional for the couple, they can now request in form of writing to a marriage officer to publish or not to publish a notice regarding the marriage.

Bombay High Court to NIA: Consider Health and Age of Varavara Rao Before Opposing His Bail Plea

The Bombay HC on Wednesday observed that ‘we are all humans’ and asked the National Investigation Agency and the Maharashtra Government to consider the health and age of the Telugu poet-activist Varavara Rao before making submissions in response to his bail plea application on medical grounds.

Supreme Court Agrees To Examine Centre’s Plea To Keep Adultery a Crime in Armed Forces

The Centre appealed to the Supreme court on Wednesday, pleading that the 2018 judgment of decriminalizing adultery under IPC must not apply to the armed forces. The Supreme Court in a path-breaking verdict in 2018 decriminalized adultery and declared all its provisions unconstitutional as it diminishes the value of women, but maintained that it continues to be a ground for divorce.

Supreme Court Examines the Pollution in Yamuna River for the Second Time

The Supreme Court on Wednesday made a second attempt to clean the Yamuna river by taking a Suo Moto Cognizance of significantly high levels of ammonia water discharged from neighbouring states like Haryana into Delhi.

Fetus Suffering From Anencephaly, Woman’s Plea To Terminate 28-Weeks Pregnancy Allowed by Delhi HC

Based on the report of the medical board constituted by AIIMS, the Delhi High Court on Monday allowed a petition filed by a woman seeking the termination of her 28-weeks pregnancy. They said in its report that the fetus suffered from anencephaly, a disorder where the skull bone is not developed and was thus incompatible with life, therefore her fetus can be aborted.

More Articles Like This

- Advertisement -