KV Seetharamaiah
The Supreme Court has affirmed that Muslim women are entitled to maintenance from their ex-husbands just as non-Muslim women are. It is true that religion should not play a role.
The obligation of men to pay maintenance to their ex-wives has not led to a significant reduction in the number of divorces.
If men are released from their obligation to pay maintenance to their divorced wife, the number of divorces will increase unimaginably.
According to Muslim law, the divorced woman is paid maintenance for the duration of the Iddat period. The Iddat period is 3 months and 13 days.
Muslim men can wash their hands of paying maintenance only during the Iddat period. This negligence leads to a higher number of divorces.
The effects of divorce are even more serious when husband and wife grow apart after the birth of children. The situation of the children, who have to remain separated from their father or mother, would be terrible.
The Supreme Court has declared that a divorced Muslim woman is entitled to maintenance from her husband under Section 125 of the Code of Criminal Procedure (CrPC). A bench of Justices BV Nagarathna and Augustine George Masih rejected the argument that the Muslim Women (Protection of Rights and Divorce) Act 1986, enacted after the Shah Bano verdict, takes precedence over secular law.
In the event of a conflict between civil status law and secular law, secular law takes precedence over civil status law or must take precedence.
The Supreme Court has clearly stated that Section 125 of the CrPC applies to all married and divorced women irrespective of their religion.
Women who married under the Special Marriages Act are not disqualified from claiming maintenance. It has been held that there can be no inequality in receiving maintenance on the basis of the law under which a woman was married or divorced.
In her judgment, Judge Nagarathna underlines the need for financial stability and empowerment of married women, thereby confirming the right of divorced Muslim women to maintenance.
It places emphasis on protecting financial security and residency security to empower women.
The top court clarifies that the entitlements to maintenance under Section 125 of CrPC are in addition to the rights conferred under the 1986 Act and not in lieu of them. The question arises as to what a divorced Muslim woman is supposed to do for the rest of her life if she is paid maintenance only for the Iddat period.
It may be recalled that the Supreme Court judgment in the Shah Bano case was overturned by the 1986 Act.
The law gave Muslim women the right to “adequate” and “fair provision and maintenance” from their husbands during the Iddat period. The question of “what is adequate and what is fair” remains unanswered.
The law is said to have been passed to overturn the judgment in the Shah Bano case, in which the Supreme Court had ruled in favour of Shah Bano regarding maintenance payments.
The argument of Mohd Ahmed Khan, Shah Bano's husband, that the postal vote meant he was no longer his wife and therefore not liable to pay maintenance under Islamic law was rejected by the Supreme Court.
The court ruled in Shah Bano's favor. The passing of the 1986 law did not bring any significant relief to the divorced Muslim woman.
It only retained the Muslim personal status law. The Rajiv Gandhi government is said to have passed the law with the Muslim electorate in mind. It is ridiculous to think that retaining the Muslim personal status law in any other form could bring in votes.
While Muslim men may object to the payment of maintenance beyond the Iddat period, Muslim women are likely to welcome the continuation of maintenance payments beyond the Iddat period.
The loss of votes from Muslim men is compensated by the gain in votes from Muslim women.
There may be no significant benefit in overturning the Supreme Court’s judgment in the Shah Bano case.
The Supreme Court has also ruled that a woman in a marriage-like relationship is entitled to maintenance even if the relationship is strained and the marriage-like relationship between man and woman breaks down.
The Supreme Court has recognized a cohabitation relationship as a valid marriage if the man and woman live together for a long period of time. What “for a long period of time” means is not defined.
The amount of maintenance is determined by the court depending on the circumstances. It would be fair if the husband's income was divided by the number of members at the time of divorce and the dividend at the time of divorce was divided equally among the members.
All men think long and hard before filing for divorce.
Divorces not only cause suffering for the husband and wife, but also for the parents and children of the divorced couples. Divorces should be the exception rather than the rule.
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