INTRODUCTION
Iddat is one of the customary practices under the Quran which has been recognised through legislative enactment as well. Under section-2(b) of The Muslim Women Act, 1986,[1] “iddat” is mandatory under which divorced/widowed wives have to observe certain restrictions. Section 2(b) of the Act prescribes iddat period to be followed in three different scenarios;
(i) If the divorced woman is subject to menstruation, then she is required to abstain from remarriage for three menstrual cycles starting from the date at which dissolution of marriage took place.
(ii) In case if the divorced woman is not going through the menstruation period then she is supposed to observe iddat for three lunar months. And,
(iii) If she is pregnant during the dissolution of marriage, the period of iddat extends till the time she delivers the child or till the termination of pregnancy whichever comes earlier.
However, certain scenarios are overlooked by this Act, because, in case of marriage has not been consummated, a wife will not be subject to observing iddat period.[2] And, in case the wife is widowed,[3] then she is required to observe iddat for 4-months and 10-days starting from the date of her husband’s death, the consummation of marriage is presumed in these cases. Moreover, in the talaq-i-ahasan divorce, the iddat starts immediately from the pronouncement of talaq, and once it is over, then the talaq is considered to be final,[4] and within the iddat period, both husband and wife abstain themselves from sexual intercourse as well. Thus, in this form of divorce iddat does not start after a divorce, but on the contrary, only when the iddat period is over, talaq is considered as final.[5]
The principle of valid retirement holds the key in deciding whether the wife is required to observe the period of iddat or not. Valid retirement refers to a situation under which both husband and wife have certain moments of privacy without any kind of socio-legal barrier to their cohabitation. And, this valid retirement raises a presumption of the consummation of marriage unless the evidence suggests otherwise.
RULES REGARDING IDDAT
During the iddat period, several restrictions are imposed on divorced/widowed wives as they are not allowed to use beauty products, prohibited from wearing silk clothes, and they are required to remain in complete seclusion at their former husband’s home, because, that home is considered as their permanent home. And, the fact that dissolution of marriage becomes effectuated after completion of iddat period shows that their former husband’s home is still considered as her residence. Moreover, a divorced/widowed woman is only allowed to wear plain clothes[6] during the iddat period.
Such iddat rules impose one-sided onus on the wives only to go through the period of hardship, which is imposed upon by the act of their husbands, thus, such rules are more in form of punishment than it has its ties with reasonability. Furthermore, in case of divorced/widowed woman choose to remarry during iddat, such marriages were void earlier, but now it is considered as irregular,[7] however, such marriage lacks any legal effect before consummation of marriage and even if marriage gets consummated, a wife has no right of inheritance in her husband’s property when it is irregular (fasid) marriage.[8]
REASONS BEHIND THE PRACTICE OF IDDAT
(i) For the purpose of ascertaining pregnancy or a child’s parentage: Iddat period is practiced amongst Muslims to ascertain the pregnancy of a divorced/widowed woman or child’s parentage at the time of dissolution of marriage of his/her parents. This is because, it is difficult to ascertain a child’s parentage once his/her mother remarries to another man, but if she observes the prescribed period of iddat, then such confusion might be averted.[9]
However, earlier it might not be possible scientifically to ascertain whether the woman is pregnant or not at the time of divorce in case if a child has been just begotten, but with the advancement in technology, these confusions can be averted. Thus, such practice was plausible in ancient times, but now in the modern era of scientific advancement when there are several methods available at one’s disposal to find out child’s parentage, this practice should be discarded, because, following such practices only based on religious precept might not be logically viable as it also violates woman’s right to choose her life partner.[10]
(ii) Opportunity for reconciliation: Marriage in Islam has its profound importance be it according to Prophet Mohammad’s word where he stated that best people of his nation can be considered only those who entered into marital ties[11] and considered marriage as a part of his tradition.[12] Because of this as well, iddat is accepted as a period for reconciliation of potential differences amongst husband and wife. However, as per Holy Quran, a husband is considerably at a higher pedestal, because it gives husbands a degree of advantage in the matters of reconciliation in comparison to their female counterparts.[13]
Thus, it can be said that divorce laws especially that of extra-judicial form under Muslim law gives a disproportionate right to the husbands who can pronounce divorce without assigning any reason, furthermore, even if the husband is not of an opinion to reconcile the differences with his wife, the wife has to observe iddat in which she is not allowed to remarry and forced to follow harsh rules,[14] which violates their fundamental right vide Article-14, 19, and 21.
(iii) Period of mourning for the deceased husband: Observing iddat period is also considered as important because as per the societal precepts it gives ample time to the widowed wife to mourn over the death of her husband, and by this way, she can protect herself from taking haste decision in the time of vulnerability. Furthermore, as per the general observation, if a wife chooses to remarry soon after her husband’s death, then, she might become subject to society’s ridicule. Thus, the widowed wife has to observe iddat for over 4-months and 10-days.
And, even if the marriage between the deceased husband and widowed wife has not been consummated, she has to observe iddat over the mandatory period. But, as it has been stated earlier, the consummation of marriage is important to decide over the iddat period in case of dissolution of marriage by divorce/talaq.[15] Thus, it can be said that in the case of observing iddat by widowed wife, societal and religious norms supersedes the widow’s personal needs.
IMPORTANCE OF IDDAT FOR MAINTENANCE RIGHTS
Under Muslim law, a husband is obliged to maintain his wife only till the iddat period if the dissolution of marriage takes place, and, in the case of a widowed wife, the responsibility of maintenance of widow lies on her heirs who will inherit her property.[16]
Furthermore, s.3(1)(a) of the Muslim Women Act created ambiguity because of which several High Courts found the practice of iddat constitutionally valid by reiterating that they have maintenance right till iddat period only. Most importantly it can be observed that Andhra Pradesh HC construed the word “within” in the narrow sense by stating that obligation of maintaining wife by husband remain till iddat period only,[17] while on the contrary Gujarat HC interpreted “within” by stating that the husband’s responsibility extends to taking care of wife’s present as well as future needs, and thus, the amount of maintenance of wife after completion of iddat should be paid “within” the iddat period itself,[18] and it has been further upheld by the Supreme Court.[19]
Lastly, in Shabana Bano v. U.O.I.[20] SC substantially deviated from the principle of Mohammedan law by adjudicating that divorced wife has right to claim for maintenance even after completion of iddat period vide s.125 (CrPC). The inference which can be construed is that it diluted the importance of the iddat period for maintenance rights.
CONCLUSION
It can be observed that the practice of iddat might hold significant value in earlier times because there is a lack of scientific advancement to determine the pregnancy of a woman in the early phase or parentage of a child in case of remarriage. But, with the advancement of science, such things can easily be determined without forcing them to accept subjugation in the name of the religious norm.
These personal laws remained stagnant, which caused them to become gender discriminatory with the change in modern scenario, they were relevant earlier, but they failed to accept the change in societal structure and technological advancement. Rules regarding iddat also hinders divorced/widowed woman’s freedom of movement vides Art.19. Along with violating their right to life as they are prohibited to choose their life partner.[21]
Furthermore, through judicial adjudications, the importance of iddat from the perspective of maintenance rights of Muslim women also becomes nugatory through the inclusion of s.125 (CrPC). Thus, such discriminatory practices can be allowed to flourish keeping in mind the holistic development that took place in different areas along with the enactment of fundamental rights which granted equal rights to all its citizens irrespective of their affinity to religion or gender.
Author(s) Name: Kumar Aditya (Bennett University, Greater Noida)
References:
[1] The Muslim Women (Protection of Rights on Divorce) Act, 1986, s.2(b).
[2] (Al-Quran 33:49)
[3] The Holy Quran, Al-Baqarah 2:234-235, Translation Yusuf Ali (Orig.1938).
[4] Paras Diwan, “Muslim Law in Modern India”, Allahabad Law Agency, pg.171-173, 13th ed. (2018).
[5] Ibid.
[6] Mohammed Ali Ismail, “Islamic Laws”, The World Federation, Ch.29 (Ruling 2535-2539), 3rd ed. (2014)
[7] Muhammad Hayat v Muhammad Nawaz (1935) 17 Lah. 48.
[8] Dinshaw Fardunji Mulla, “Mulla’s Principles of Mahomedan Law”, Lexis Nexis, Ch.XIV, 22nd Ed.
[9] Supra note 4 at 1.
[10] Shakti Vahini v U.O.I. 7 SCC 192.
[11] Wasa’il ul-Shi’a, Vol.14, p.3-4.
[12] Wasa’il ul-Shi’a, Vol.14, p.6.
[13] (Al-Baqarah 2:228).
[14] Subramanian Narendra, “Legal change and gender inequality: Changes in Muslim Family Law”, Law & Social Inquiry, Volume 33, Issue-3, pg-631-672, 2008.
[15] Supra note 8 at 2.
[16] Aga Mahomed Jaffer v Koolsom Beebee, (1897) 25 Cal. 9.
[17] Usman Khan Bahamani v Fathumunnisa Begum, 1990 CriLJ 1364.
[18] A.A. Abdulla v A.B. Mohmuna, AIR 1988 Guj 141.
[19]Daniel Latifi v Union of India, Writ Petition (civil) 868 of 1986.
[20] S.L.P. (Crl.) No.717 of 2009.
[21] Supra note 20 at 4.
