The Supreme Court's verdict that Muslim women are entitled to maintenance under Section 125 of the Code of Criminal Procedure (CrPC) is an affirmation of their equal rights before the law, which cannot be taken away from them by common law, special law or any other means. A bench of Justices BV Nagarathna and Augustine George Masih underlined the principle that maintenance after divorce is not charity but a fundamental right of all married women, irrespective of their religion and irrespective of the mode of divorce. The verdict came on an appeal by Mohd Abdul Samad, who challenged a Telangana High Court decision upholding a family court's order awarding maintenance to his divorced wife under Section 125 of the CrPC. Samad argued that a divorced Muslim woman should seek maintenance only under the Muslim Women (Protection of Rights on Divorce) Act, 1986. The court dismissed the judgment, maintaining that Section 125 was a secular provision applicable to all women and Muslim women had the choice to claim maintenance under the CrPC provision, the special law or both.
The judgment revisits the Shah Bano case, in which the Supreme Court ruled in favour of a divorced Muslim woman's right to maintenance under Section 125. It was believed that the subsequent enactment of the 1986 Act restricted this right. The court has now clarified that this was not the case. Over the years, judgments have gradually affirmed the right of Muslim women to equal treatment and the applicability of Section 125 to all. The law and practice have evolved to extend the maintenance rights of divorced Muslim women. In the 2001 Daniel Latifi case, the maintenance rights of Muslim women were extended beyond the Iddat period to remarriage. The court reiterated this principle in 2009 and again upheld the right of Muslim women to maintenance under the CrPC provision. In 2019, the Patna High Court ruled that divorced Muslim women can claim maintenance under both Section 125 and the 1986 Act. Despite these rulings, court cases continued, arguing that the 1986 Act, being a special law, takes precedence over Section 125. The court eventually rejected this argument and clarified that it is up to the woman to choose the law she wants to be subject to.
The judgment makes it clear that the constitutional right to equality prevails over all laws and customs, and ensures that Muslim women are not deprived of their entitlements and their right to social and economic security. The judgment and the response to it show how far India has come in the last few decades on the road to gender equality. It also shows how one can move towards the ideal of a common civil law without politics and confrontation.
Published on July 11, 2024, 21:53 IST
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