Are the provisions of the Code of Criminal Procedure (CrPC) relating to maintenance rights of married women applicable to Muslims? This fundamentally incorrect question has been asked time and again since it was first included in the old CrPC of 1898 (Section 488). The CrPC is a universal, non-religious law, and its provisions cannot be applied selectively to different religious groups of citizens. Eminent judges of India have made this clear since the early years of the post-Constitution period. This year, the question was again taken up in the Supreme Court, and in the Abdul Samad case decided on July 10, it was again answered in the affirmative.
Justice Nagarathna's verdict in this case shows her deep concern for those married women who are not earners of livelihood but are merely housewives (AP) {{^userSubscribed}} {{/userSubscribed}} {{^userSubscribed}} {{/userSubscribed}}
The applicability of the provisions of the CrPC to Muslims had been first upheld by the Kerala High Court (Badruddin, 1957). In a later case, Justice V R Krishna Iyer (then of the same court) strongly supported the decision, saying, “I have no doubt that it is the duty of the Indian courts to enforce Section 488 of the CrPC in favour of all Indian women, be they Hindu, Muslim or otherwise” (Shahulameedu, 1970). The next year, Iyer, as a member of the Law Commission of India, strongly recommended that under the new CrPC (then being drafted), the facilities provided for married women should also be available to divorced wives. The then government wanted to accept his recommendation, but faced stiff opposition from Muslim religious circles and finally incorporated it in the CrPC, 1973 with some concessions to partially accommodate the contrary rules of personal law and custom. When Justice Iyer was appointed to the Supreme Court, he tried to mitigate the impact of these concession provisions by making them subject to stringent conditions (Bai Tahera, 1979). In a later case, he even rebuked a high court for not following his judgment (Fuzlunbi, 1980). As these cases led to simmering discontent among the Muslims, the next case on the subject was referred by Justice Murtaza Fazal Ali to Chief Justice YV Chandrachud for a larger bench to decide. This referral led to the Constitutional Court's decision in the famous Shah Bano case in 1985.
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The Muslim leaders of the time vehemently opposed Shah Bano and on their demand, the government decided to enact a remedial law in 1986 which, in the view of these leaders, rendered the new law almost ineffective. Several high courts disagreed with this view and interpreted the new law in a way that kept Shah Bano alive. The constitutionality of the new law was soon challenged but the matter was decided 16 years later by another Constitutional Bench headed by Justice Rajendra Babu (Danial Latifi, 2001). It upheld the controversial law willy-nilly but firmly ruled that it should be applied strictly in accordance with the judgment in the Shah Bano case. In the years that followed, in several cases, starting with Khatun Nisa (2002), the Supreme Court treated the provisions of the CrPC and the 1986 Act as parallel legislations in pari materia and did its best to harmonize them in letter and spirit. However, there is still a need for a clear ruling that the decision to seek redress under either law rests with the aggrieved women. The judgment in Abdul Samad satisfies this urgent need admirably.
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This case is practically routine in Muslim households and remains so even today: a couple's relationship breaks down, the wife moves out of the matrimonial home and files criminal proceedings against the husband, who then unilaterally divorces her and then tries to defeat her maintenance claim in court by invoking the common interpretation of Muslim law on the subject. This is what a man from Telangana did and when the trial court decided the wife's claim in her favour, he appealed to the state Supreme Court, arguing that the dispute should be decided not under the CrPC but solely under the 1986 Act, which, according to his lawyer's knowledge, had more or less enforced traditional Muslim law and is still in force in that sense. Finding no help there, the man knocked on the doors of the Supreme Court. An amicus curiae appointed by the court placed before it a summary of all the previous cases on the subject and the two judges wrote separate but concurring judgments. Both made it clear beyond any doubt that Muslim women can equally access the CrPC legislation as well as the 1986 Act and that they can invoke either or both of the two laws as they wish.
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To place the issue in its historical context, the two learned judges, AG Masih and BV Nagarathna, in their respective judgments, endeavoured to trace the four-decade-long history of judicial approach to the contentious issue – from Krishna Iyer’s Bai Tahera decision of 1979 to the conflicting decisions of R Bhanumati and Indira Banerjee in Rana Nahid case of 2020. They jointly dismissed the husband’s appeal against the judgment of the Telangana High Court.
Justice Nagarathna's judgment in this case shows her deep concern for those married women who are not earners of livelihood but are merely housewives. She writes, “A woman with an independent source of income may be financially well off and not totally dependent on her husband and his family. But what is the position of a married woman, often referred to as a housewife, who has no independent source of income whatsoever and is totally dependent financially on her husband and his family?” I humbly share her passionate appeal that “a married Indian man must become conscious of the fact that he has to financially support and provide for his wife who has no independent source of income.”
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The CrPC Maintenance Act has been essentially retained in its new version, the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, which came into force earlier this month. The Supreme Court's decision applies to the new equivalent provisions as well.
Tahir Mahmood is former Chairman of the National Commission for Minorities and former member of the Law Commission of India. The views expressed are personal
News / Opinion / Latest Supreme Court Opinion on Maintenance Laws and Redress
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