Muslim Women's Right to Maintenance

Muslim Women's Right to Maintenance

A divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in accordance with Muslim law. - 

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; and
2. three lunar months after her divorce, if she is not subject to menstruation; and
3. if she is pregnant at the time of her divorce, the period between the divorce and delivery of her child or the termination of her pregnancy whichever is earlier.

Rights

A Muslim woman at the time of divorce is entitled to the following

1. A reasonable and fair provision and maintenance to be made and paid to her within the iddatperiod by her former husband;
2. Where she herself maintains the children born to her before or after her divorce, 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;
3. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
4. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
5. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
6. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

Application

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 above have not been delivered to a divorced woman on her divorce,

She or any one duly authorized by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.

Where an application has been made by a divorced woman and the Magistrate is satisfied that-

1. her husband having sufficient means, has failed or neglected to make or pay her within theiddat period a reasonable and fair provision and maintenance for her and the children; or
2. the amount equal to the sum of mahr or dower has not been paid; or
3. that the properties have not been delivered to her,

He may make an order, within one month of the date of the 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
• Make an order for the payment of such mahr or dower or
• The delivery of such properties as referred to above to the divorced woman

Failure to Pay

If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may

1. 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 and
2. 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.

Failure to Maintain Herself After Iddat Period

Where the 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 who 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 by her 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 periods as he may specify in his order.

Where Parents are Unable to Pay

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.

Where Divorced Woman has no Relatives

Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or any one of them have not enough means to pay the maintenance ordered by the Magistrate, the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the woman resides,

• To pay such maintenance as determined by him or,

As the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as be may specify in his order.

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Registration of A Society

Registration of A Society

Minimum 7 or more persons, eligible to enter into a contract can form society for various bona fide purposes. Under the Jammu and Kashmir Act, and Telengana Area Act, only 5 persons can form a society.

Eligibility

Besides individual, following persons are eligible to form a society by subscribing to the memorandum of a society:

• Foreigners
• Partnership firm
• Limited company
• Registered society
• Minors not eligible

Purposes for Which A Society Can be Formed

A society can be formed for the promotion of literature, science or the fine arts or the diffusion of useful knowledge/political education or for charitable purposes. Section 20 of the principal Act specifies the following purposes for which societies may be registered under the Act:

• Grant of charitable assistance
• Creation of Military orphan funds
• Societies established at the General Presidencies of India
• Promotion of
• Science,
• Literature,
• Fine Arts,
• Instructions or diffusion of useful knowledge,
• Diffusion of political education,
• Foundation or maintenance of libraries or reading rooms,
• Public museum and galleries of paintings,
• Works of Act,
• Collections of natural history,
• Mechanical and philosophical inventions,
• Instruments,
• Designs

Formation for Profit Motive Prohibited

For a society registered under Societies Registration Act, 1860 or under the Section 25 of Companies Act, profit motive for personal use is disentitled. Whatever profit is made through the working of such a society, is accountable for, and is necessary to put back the profit in the working of such a society. The Companies Act under section 25 also prohibits any payment of any dividends of its members as part of profit earned.

Registration of Society

Place of registration

The registration of a society is to be done under the act wherever obtaining and not in the state where the benefit is claimed.

Once the persons proposing to form a society have decided upon the name of the society and have prepared a draft of the memorandum and rules and regulations the society the following procedures would have to be adopted for getting the society registered:

Signing of Memorandum of Association

All subscribers (minimum 7) should sign each page of the memorandum and the signature should be witnessed by an Oath Commissioner, Notary Public, Gazetted Officer, Advocate, Chartered Accountant, Magistrate First Class with their rubber/official stamp and complete address.

Documents required to be filed with the registrar of the society

• Covering letter requesting for registration stating in the body of letter various documents annexed to it.

• Memorandum of Association in duplicate along with a certified copy.

• Rules and regulations

• Where there is a reference to any particular existing places of worship like temple, masjid,gurdwara etc. sufficient documentary proof establishing legal competents and control of applicant society over such places should be filed.

• Affidavit of non-judicial stamp paper of appropriate value by President or Secretary of the office.

• Documentary proof house tax receipt, rent receipt in respect premises shown as registered office of a society or ‘No Objection Certificate’ from the owner of the society.

Effect of Registration / Non-Registration of A Society

The Societies Registration Act, 1860 lays down procedure for registration of societies for variousbonafide purposes.

The registration gives the society a legal status and is essential

• for opening bank accounts,
• obtaining registration and approvals under Income Tax Act,
• lawful vesting properties of societies, and
• gives recognition to the society at all forums and before all authorities.

When the society is registered, it and its members become bound to the same extent, as if each member had signed the memorandum.

A society, registered under this Act, must confine its activities to the sphere embraced by its objects.

A tax imposed on a society is one imposed on the society and not on its members.

A society registered under the Act enjoys the status of a legal entity apart from the members constituting it. A society so registered is a legal person just as an individual but with no physical existence. As such it can acquire and hold property and can sue and be sued.

The society should be registered under the Act to acquire the status of juridical person.

In the absence of registration, all the trustees in charge of the fund have alone a legal status and the society has no legal status, and, therefore, it cannot sue and be sued. A non-registered society may exist in fact but not in law. It is immaterial under the Act whether the society is registered but where the benefit is claimed, the registration of society under the Act us required. An unregistered society cannot claim benefits under the Income-tax act.

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Arbitration

Arbitration

The Arbitration and Conciliation Act, 1996 came into force with effect from 22.8.1996. It consolidates and amends the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards.

It applies to the whole of India. It applies to the State of Jammu and Kashmir to the extent of the provisions relating to enforcement of foreign awards, which apply in full, other provisions apply insofar as they relate to international commercial arbitration or conciliation.

The Act is based on the conciliation rules adopted by the United Nations Commission on International Trade (UNCITRAL)

What is arbitration?

Arbitration is a process of dispute resolution in which a neutral third party (called the arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. It is the means by which parties to a dispute get the same settled through the intervention of a third person, but without having recourse to court of law.

What is an arbitration agreement?

1. Arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not.

2. The parties make an agreement that instead of going to the court, they shall refer the dispute to arbitration.

3. The arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Where an arbitration clause is included in a contract and the contract is avoided due to misrepresentation or fraud, the arbitration clause may still continue to be binding.

4. Where, however, there was no contract at all between the parties or contract was void ab initio, the arbitration clause cannot be enforced.

5. An arbitration agreement/clause must be in writing. Although no formal document is prescribed, however, it must be clear from the document that the parties had agreed to the settlement of dispute through arbitration.

6. Where the arbitration agreement or clause is contained in a document, the parties must sign the document. Besides, the arbitration agreement may be established by-

1. an exchange of letters, telex, telegram or other means of telecommunication; or

2. an exchange of statement.

Appointment of an Arbitrator

Who May be Appointed

A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. In case of an international commercial arbitration, where the parties belong to different nationalities, the Chief Justice of India may appoint an arbitrator of a nationality other than that of the parties.

Number of Arbitrators

The reference may be made either to a single arbitrator or a panel of odd number (i.e. 3, 5,7, etc.) of arbitrators. The parties are free to fix the number of arbitrators by agreement. If there is no agreement, the reference shall be made to a sole arbitrator.

Grounds for Challenging Appointment

The appointment of an arbitrator may be challenged if

1. circumstances exist that give rise to justifiable doubts as to his independence or impartiality or
2. he does not posses the qualifications agreed to by the parties.

Place of Arbitration

The parties are free to agree on the place of arbitration and failing an agreement to do so the place shall be determined by the arbitral tribunal having regard to the circumstances of the case and convenience of the parties.

Who May Refer to Arbitration?

An arbitration agreement is a contract and thus, any party to such an agreement must have the capacity to contract.

What Disputes May be Referred?

The parties to an arbitration agreement may refer to arbitration, a dispute which has arisen or which may arise between them, in respect of a defined legal relationship, whether contracted or not.

Thus, all matters of civil nature whether they relate to present or future disputes may form the subject matter of reference. The dispute, however, must be the consequence of legal relationship arising out of an obligation, the performance of which is a duty under the law and for its breach a remedy is provided.

Bar to Suit

When the parties have entered into an arbitration agreement, they cannot file a suit in a court of law in respect of any matter covered by the agreement; otherwise the very purpose of arbitration will be frustrated. The court will normally not intervene except where so provided by the Act.

What Disputes Cannot be Referred For Arbitration

The following disputes cannot be referred to arbitration:

1. Insolvency proceedings.
2. Lunacy proceedings.
3. Proceedings for appointment of a guardian to a minor.
4. Question of genuineness or otherwise of a will or matter relating to issue of a probate.
5. Matters of criminal nature.
6. Matters concerning Public Charitable Trusts.
7. Disputes arising from and founded on an illegal contract

Interim Orders by Court
A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before its enforcement, apply to the court for any of the following matters-

1. appointment of guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings;
2. preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;
3. securing the amount in dispute in the arbitration;
4. detention, preservation or inspection of any property or thing which is the subject matter of the dispute, or to authorize for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorizing any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for obtaining full information or evidence;
5. interim injunction or the appointment of a receiver; or
6. such other interim measure of protection as may appear to the court to be just and convenient.

A court has jurisdiction to pass interim orders even before arbitral proceedings commence and before an arbitrator is appointed.

Setting aside an Award

An application for setting aside an arbitral award may be made before the court, by a party within three months of receipt of the award by him. The court may set aside an award on the following grounds:

1. a party was under some incapacity;
2. the arbitration agreement is not valid under the law;
3. the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;
4. the award deals with a dispute not contemplated by or beyond the scope of the submission to arbitration;
5. the composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the agreement or with the law;
6. the subject-matter of the dispute is not capable of settlement by arbitration under the law; or
7. the arbitral award is in conflict with the public policy of India.

Appeal

An appeal shall lie before the court, against the following orders-

1. granting or refusing to grant any interim measure
2. setting aside or refusing to set aside an arbitral award and
3. granting or refusing to grant an interim measure of protection.

No second appeal shall lie against the appellate order of the court, except, however, that an appeal may be made to the Supreme Court.

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Public Interest Litigation and procedures in India

Public Interest Litigation

"Public interest Litigation", in simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.

Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a Public Interest Litigation can be filed. For e.g.

• Violation of basic human rights of the poor
• Content or conduct of government policy
• Compel municipal authorities to perform a public duty.
• Violation of religious rights or other basic fundamental rights.

When can a public interest litigation be filed?

A public interest litigation can be filed only in a case where "Public Interest" at large is effected. Merely because, only one person is effected by state inaction is not a ground for Public interest litigation

These are some of the possible areas where a PUBLIC INTEREST LITIGATION can be filed.

• Where a factory / industrial unit is causing air pollution, and people nearly are getting effected.
• Where, in an area / street there are no street lights, causing inconvenience to commuters
• .Where some "Banquet Hall" plays a loud music, in night causing noise pollution.
• Where some construction company is cutting down trees, causing environmental pollution.
• Where poor people, are affected, because of state government's arbitrary decision to impose heavy "tax".
• For directing the police / Jail authorities to take appropriate decisions in regards to jail reforms, such as segregation of convicts, delay in trial, production of under trial before the court on remand dates.
• For abolishing child labor, and bonded labor.
• Where rights of working women are affected by sexual harassment.
• For keeping a check on corruption and crime involving holders of high political officer.
• For maintaining Roads, Sewer etc in good conditions.
• For removal of Big Hoarding and signboard from the busy road to avoid traffic problem.
• Recently a Public Interest Litigation has been filed, for directing the "Delhi Traffic Police" to stop the method of sending challans to address by post, as it is being misused.

Who Can File a Public Interest Litigation?

• Earlier it was only a person whose interest was directly affected along with others, whereby his fundamental right is affected who used to file such litigation.
• Now, the trend has changed, and, any Public-spirited person can file a case (PUBLIC INTEREST LITIGATION) on behalf of a group of person, whose rights are effected.
• It is not necessary, that person filing a case should have a direct interest in this PUBLIC INTEREST LITIGATION

For e.g. a person in Bombay, can file a PUBLIC INTEREST LITIGATION for, some labor workers being exploited in Madhya Pradesh or as someone filed a PUBLIC INTEREST LITIGATION in supreme court for taking action against Cracker factory in Sivakasi Tamil Nadu, for employing child labor or the case where a standing practicing lawyer filed a PUBLIC INTEREST LITIGATION challenged a government policy to transfer High Court judges and similarly a lawyer filed a PUBLIC INTEREST LITIGATION for release of 80 under trials in a jail, who had spent more number of years in jail, than the period prescribed as punishment for offence, for which they were tried.

It is clear that, any person, can file a PUBLIC INTEREST LITIGATION on behalf of group of affected people. However it will depend on every facts of case, whether it should be allowed or not.

Against Whom a Public Interest Litigation Can be Filed?

• A PUBLIC INTEREST LITIGATION can be filed only against a State / Central Govt., Municipal Authorities, and not any private party.
• However "Private party" can be included in the PUBLIC INTEREST LITIGATION as "Respondent", after making concerned state authority, a party.
  
  For example - If there is a Private factory in Delhi, which is causing pollution, then people living nearly, or any other person can file a PUBLIC INTEREST LITIGATION against:

· Government of Delhi
· State Pollution Control Board, and
· Also against the private factory

• However, a PUBLIC INTEREST LITIGATION can not be filed against the Private party alone concerned state Govt. /, and state authority has to be made a party.

Procedure to File a Public Interest Litigation

A "Public Interest Litigation", is filed in the same manner, as a writ petition is filed.

In High Court

If a Public Interest Litigation is filed in a High court, then two (2) copies of the petition have to be filed. Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition.

In Supreme Court

If a Public Interest Litigation is filed in the Supreme court, then (4)+(1) (i.e. 5) sets of petition has to be filed opposite party is served, the copy only when notice is issued.

Court Fees

A Court fee of RS. 50, per respondent (i.e. for each number of opposite party, court fees of RS. 50)has to be affixed on the petition.

Procedure

• Proceedings, in the PUBLIC INTEREST LITIGATION commence and carry on in the same manner, as other cases.
• However, in between the proceedings if the judge feels he may appoint a commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems, etc.
• After filing of replies, by opposite party, and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision.

Can a Letter Explaining Certain Facts to Chief Justice be Treated as A Public Interest Litigation

• In early 90's there have been instances, where judges have treated a post card containing facts, as a PUBLIC INTEREST LITIGATION some of them are :
• Letter alleging the illegal limestone quarrying which devastated the fragile environment in the Himalayan foothills around Mussoorie, was treated as a PUBLIC INTEREST LITIGATION
• A journalist complained to the Supreme Court in a letter, that the national coastline was being sullied by unplanned development which violated the central government directive was treated as a PUBLIC INTEREST LITIGATION

The Present Scenario:

In the past, many people have tried to misuse the privilege of PUBLIC INTEREST LITIGATION and thus now the court generally require a detailed narration of facts and complaint, & then decide whether to issue notice and call the opposite party.

• However as there is no statute laying down rules and regulations for a PUBLIC INTEREST LITIGATION Still the court can treat a letter as a PUBLIC INTEREST LITIGATION
• However the letter should bring the true & clear facts, and if the matter is really an urgent one, the court can treat it is a PUBLIC INTEREST LITIGATION
• But still it depends upon facts and circumstances, and court has the entire discretion.

Reliefs available by Public Interest Litigation

There are many kinds of remedies, which can be given in a PUBLIC INTEREST LITIGATION, to secure the public interest, at large. They are:

Interim Measures

The court can afford an early interim measure to protect the public interest till the final order for example:

• Release of under trial on personal bonds ordering release of all under trial who have been imprisoned for longer time, than the punishment period, free legal aid to the prisoners, imposing an affirmative duty on magistrates to inform under trial prisoners of their right to bail and legal aid. Or
• Closure of Industrial plant emitting poisonous gas, setting up victim compensation scheme, ordering the plaint reopening subject to extensive directions etc. Or
• Prohibiting cutting of trees or making provisions for discharge of sewage, till the disposal of final petition.

Relief in most of the PUBLIC INTEREST LITIGATION cases in the Supreme Court is obtained through interim orders.

Appointing a Committee

• The court may appoint a committee, or commissioner to look into the matter, and submit its report.
• Such committee or commissioner may also be given power to take cognizance of grievances and settle it right in the public intent.

Final Orders

The court may also give final orders by way of direction to comply within a stipulated time.

Can a Writ Petition be Treated as a Public Interest Litigation?

Yes, a writ petition filed by the aggrieved person, whether on behalf of group or together with group can be treated as a PUBLIC INTEREST LITIGATION however,

• The writ petition should involve a question, which affects public at large or group of people, and not a single individual.
• Only the effected /Aggrieved person can file a writ petition.
• There should be a specific prayer, asking the court to direct the state Authorities to take note of the complaint /allegation.

Public Interest Litigation in High Court or Supreme Court

• Both the High court and supreme court have the power to entertain a PUBLIC INTEREST LITIGATION
• Since there are no statutes or rules, there cannot be a specific difference, as to which court will have jurisdiction on the PUBLIC INTEREST LITIGATION
• It will purely and solely depend on the "Nature of the case", if the question involves only a small group of people being effected by action of State authority, the PUBLIC INTEREST LITIGATION can be filed in high court. For e.g. if there is a sewage problem in a locality effecting 50 families, the PUBLIC INTEREST LITIGATION can be filed in High court.
• If a large section of people is effected whether by State Government or Central Government, PUBLIC INTEREST LITIGATION can be filed in Supreme Court For e.g. placing a ban on adult movies, prohibition industrial unit from causing pollution etc.

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