The recent Supreme Court judgement that Muslim women can claim maintenance from their husbands in the event of divorce under Section 125 of the Criminal Procedure Code, and that this “religion-neutral” provision applies to all married women irrespective of their religious beliefs, is an important affirmation of their equal rights before the law. The judgement is significant for three reasons. First, it is a progressive affirmation of the fundamental right to equality, which cannot be taken away from them by customary law, tradition, special laws or otherwise. Second, the judgement underlines the principle that maintenance after divorce is not a “charitable task but a fundamental right of all married women”, irrespective of their religion and the nature of the divorce. And third, it recognises the need to ensure that a divorced woman leads a dignified life.
The July 10 verdict, which came in response to an appeal by Mohd Abdul Samad against the Telangana High Court's decision to uphold a family court's maintenance order for his divorced wife under Section 125 of the CrPC, clarifies that women are entitled to receive maintenance from their husbands even in cases of illegal divorce under the Muslim Women (Protection of Rights on Marriage) Act, 2019. Notably, the Supreme Court (SC) verdict states that the constitutional right to equality prevails over all other laws and ensures that Muslim women are not deprived of their entitlements and right to equality and social and economic security. The verdict shows how far India has come on the road to gender equality in the last nearly four decades since the controversial maintenance case known as the 'Shah Bano case' in which the SC delivered a verdict awarding maintenance to the aggrieved divorcee.
Much has been written about the Shah Bano case of 1985 and the subsequent passage of the Muslim Women (Protection of Rights on Divorce) Act, 1986 – the codification of Shariah – which sparked a nationwide debate on the rights of Muslim women under Muslim personal and secular law. Suffice it to say that the Shah Bano case and the 1986 Act not only sparked the birth of Hindutva politics that reshaped India's social and political ecosystem but also continued to play a pivotal role in demanding equal rights for Muslim women in marital matters. While four decades ago, Muslims opposed the application of secular laws that excluded Shariah in divorce cases, over the years the community's response has gradually changed and accepted the supremacy of Section 125 of the CrPC over personal law. This has been made possible by the education and awareness of Muslim women about their marital rights under India's secular law.
The fight against the horrific practice of unilateral triple talaq was led by women who fought for a long time in the Supreme Court and got it declared illegal in 2018. This was a major step in Muslim women's fight against patriarchy, prejudice and gender injustice. With increasing awareness about their marital rights under secular law, divorced Muslim women have increasingly sought legal remedies in legal disputes over their maintenance claim under the CrPC provision. This does not mean that things have completely changed for the better for Muslim women after the repeal of triple talaq, but awareness about their legal rights and activism of Muslim women's organisations have brought about a marked change in favour of gender-equitable laws. Repeated attempts by Muslim women to challenge and reform personal status laws are a testament to this. This does not mean that the Muslim Personal Status Act, like any other personal status law, is completely regressive. In fact, the Muslim Personal Status Law has a lot to offer as we strive for gender-equitable laws.
The right of Muslim women to maintenance has been a controversial issue for decades. In Islam, divorce is the most abhorred of all possible acts. Therefore, much emphasis is laid on continuing the marriage by adopting all permissible measures for its protection. Divorce, an unpleasant and bitter experience, is advocated only in cases of irreconcilable differences or extreme circumstances as a solution to a painful marital relationship. A secular law like Section 125 of CrPC is contrary to Islamic Shariah, which prescribes a specific provision for financial support after divorce. Under Shariah, there is a system whereby anyone who divorces his wife pays her 'Mahr' (an amount agreed at the time of marriage) and three months' (Idaat) maintenance.
Maintenance is obviously a modern concept and deviates from Islamic jurisprudence. Since there is no remedy in Muslim personal law if a divorced woman is unable to support herself and her children, the judiciary is compelled to protect the maintenance claims of divorced Muslim women under secular laws that require a man to pay maintenance to his ex-wife if she does not have the financial means to support herself and her children. Whether it is the Shah Bano case or the Daniel Latifi judgment of 2001 which extended the maintenance claims of Muslim women beyond the Idaat period until their remarriage, the law and practice have evolved to expand the maintenance claims of Muslim women. In 2009, the court reiterated this principle while upholding the right of Muslim women to maintenance under the provisions of the CrPC.
In another case in 2019, the Patna High Court ruled that divorced Muslim women can claim maintenance under both Section 125 and the 1986 Act. However, despite these judgments, the court cases continued. It was argued that the 1986 Act, being a special law, takes precedence over Section 125. Mohd Abdul Samad, challenging the Telangana High Court decision, also argued that a divorced Muslim woman should claim maintenance under the Muslim Women Act, 1986 only. However, the Supreme Court rejected this on the grounds that Section 125 is a secular provision applicable to all women and Muslim women have the choice to claim maintenance under the provisions of the CrPC, the special law or both. This clear wording of the judgment clarifies the situation regarding the 1986 Act, which many believed limited a divorced woman's claim for maintenance under Section 125. In other words, the Supreme Court has reiterated that the limited obligation of a Muslim man under the Personal Status Act cannot override Section 125 of the CrPC.
The author is a senior independent journalist based in Mumbai. He tweets at @ali_chougule.
Published on: Thursday, July 25, 2024, 06:00 IST
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