Law changes according to changing circumstances which is why the Supreme Court has moved away from not tampering with the personal law of any religion to declaring that divorced Muslim women have a fundamental right to maintenance from their earning husbands.
By declaring that the right to alimony is “not a matter of charity” but a fundamental right, the apex court has laid the maxim that gender neutral laws override skewed personal laws in a secular state, so that secularism becomes synonymous with justice.
Till date, the Supreme Court was wary of interfering in the personal laws of the Hindus or Muslims because those involved meddling with matters of faith. Justice Indu Malhotra dissented when the Sabarimala verdicts were delivered by opining the apex court should not interfere in matters involving religion which is an article of faith.
Divorced Muslim women, who are unable to maintain themselves, can seek maintenance by filing an application under section 125 of the CrPC from their in-laws or other relatives who have sufficient means. Section 125 applies to wives, children, parents of a divorced wife or children and those unable to maintain themselves. In fact, the judgment of the Supreme Court iterates what was declared in the Shah Bano case which was overturned by The Muslim Women (Protection of Rights on Divorce) Act, 1986, by the Rajiv Gandhi government. This Act provided for maintenance for three months during the ‘iddat’ period. Although seen as a beneficial legislation, this law operated parallel to Section 125 of the CrPC which regulated Mehr, dower and return of the divorced Muslim woman’s property.
The Supreme Court verdict removes all anomalies and ensures divorced Muslim women are not treated as chattels, according to a senior advocate Nusrat Shah, who appeared in the hijab case before the Bombay high court.
Under the Shari’ah the husband alone can divorce his wife unless he delegates this power to his wife during the signing of the nikahnama (contract). Other forms of divorce which can be used by Muslim women are ‘khula’ and judicial divorce (including the option of puberty).
To return to section 125 of the CrPC, the Magistrate will then order the husband or other relatives to send a monthly maintenance to these divorced Muslim women after considering the social status of the husband, education, abilities and earning capacity. The proceedings are criminal in nature and a husband who refuses to comply with the magistrate’s order can go to jail.
The drawback is that this section applies only to specified categories of citizens such as wives, children, but does not cover every kind of family relationship such as a woman who is in a live-in relationship with a Muslim man but cannot prove she has signed a ‘nikahnamaor’ marriage contract.
Moreover, the Magistrate has the discretion to determine what constitutes adequate maintenance which leads to inconsistent judgments across the nation because what is adequate maintenance for a woman who comes from a poor background will not be adequate for another woman used to a higher standard of living.
Olav Albuquerque holds a Ph.D in law and is a senior journalist-cum-advocate of the Bombay high court.
