SC maintenance order gives Muslim women the opportunity to file for divorce. Ask how many will dare to do it

So naturally, this ruling has sparked a wave of renewed curiosity, mixed with relief and hope. Now, rumors of change and speculation are in the air – have the laws evolved or does the past still resonate in the present?

No codified law

While this judgment is a very welcome step towards ensuring gender equality and protecting the rights of Muslim women, especially after the 2017 triple talaq judgment, it is important to note that Section 125 of the CrPC provides financial support to all dependents, which can include wives, children, parents or other distressed relatives – not just Muslim divorcees. Moreover, this is not the first time that the court has ruled in favour of Muslim women. After Shah Bano, the court upheld the right of Muslim women to maintenance in Danial Latifi v. Union of India and Shamima Farooqui v. Shahid Khan.

Although Section 125 provides Muslim women with legal means to protect their financial maintenance, it is not a codified personal right that automatically applies to all women of the community in the event of divorce. Muslim women who choose to follow the personal right and receive maintenance under the Muslim Women (Protection of Rights in Divorce) Act only during the Iddat period can do so, and those who seek maintenance beyond that period can seek a ruling from the court. This is an option, but not a standard procedure.

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An important question

In my opinion, the provision of maintenance can provide further protection to Indian Muslim women by setting certain limits on polygamy. Since polygamy is still permitted under Muslim personal law, women whose husbands remarry often lack the financial means to support themselves, forcing them to endure hardships. However, the possibility of continuing to receive maintenance even after separation would encourage these women to file for divorce without worrying about the consequences. Men would also understand that they cannot simply divorce their first wife and leave her without responsibilities even if they marry someone else.

An important question here is: how many women would be brave enough, vigilant enough, or even have their own representation to go to court and demand maintenance from their ex-husband, without the support of their family and against social pressure, if they believe that this violates their right to privacy? We have seen the Shah Bano case and how it infuriated conservatives and radicals. Even the then Prime Minister Rajiv Gandhi, the most powerful man in India at the time, forced a poor, helpless old woman to give up her rights. It makes me sad every time I think that the most powerful Indian could not protect a woman and instead of standing by her, bowed to the fundamentalists.

But let's go back to the starting point: in a society where this kind of mentality prevails, how many women and their families will dare to go to court? Can this be a solution?

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The real solution

Maintenance is a civil family matter to which personal law is often applicable. Section 125 of CrPC, a criminal law provision, bypasses disputes arising under personal law and guarantees women a fair chance to get justice. If we do not address the root cause, which is personal rights, many women will never be able to get justice. Protecting women's rights through legal remedies should not be optional. While this judgment is a positive step, it is not a real solution to the problem of discrimination. We need to bring in a uniform civil code to protect the legal rights of Indian women, irrespective of their background and religion.

Moreover, the Supreme Court's ruling that the 1986 Act and maintenance under Section 125 of the CrPC can co-exist in their respective jurisdictions sends a clear message: Muslim men cannot approach the court and get relief from maintenance obligations by invoking personal laws, as the plaintiffs argued in this case. This decision upholds the principle that personal laws cannot override statutory maintenance obligations under the secular CrPC, thereby affirming the supremacy of secular law. This gives me hope for the future – that one day we will see laws based on gender parity and equality for every Indian woman. Until then, decisions like these provide much-needed protection and underscore the utility of secular law in safeguarding women's rights.

Amana Begam Ansari is a columnist and TV news panelist. She hosts a weekly YouTube show called “India This Week by Amana and Khalid”. Twitter handle: @Amana_Ansari. Her views are personal.

(Edited by Humra Laeeq)

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