In India, every divorced woman, regardless of her religion, is entitled to the benefits of Section 125 of the Criminal Procedure Code, which has now been replaced by the Bharatiya Nagarik Suraksha Sanhita. In two concurring judgements, Justice BV Nagarathna and Justice Augustine George Masih of the Supreme Court ruled that the woman concerned could choose to follow personal law or secular law. The case concerned a divorced Muslim woman who could have claimed maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce Act), 1986. To recall, the Rajiv Gandhi government enacted this special law in 1986 following nationwide protests against a Supreme Court ruling awarding maintenance of Rs 125 per month to the elderly and destitute Shah Bano.
Conducive as the two laws may be, there are some fundamental differences. While the 1986 Act allows maintenance for the period of 'iddat', or three months during which she cannot remarry, under the CrPC she is entitled to maintenance until she remarries. Similarly, children under her care are entitled to maintenance only for two years under the Muslim law, while under the secular law they are entitled to it until they attain majority. The court held that in case of a conflict of interest between the two laws, the woman can avail herself of the law that is more favourable to her. In other words, just because the woman belonged to the Muslim community, she should not be treated differently. In the Mary Roy case, the court had held that in case of a conflict between secular and personal law, women should avail themselves of the law that is more favourable to them. The judgments may be different, but the principle underlying them is the same.
Published on: Friday, July 12, 2024, 06:00 IST
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