The Supreme Court’s recent ruling that Muslim women can seek maintenance from their husbands in divorce cases under Section 125 of the Criminal Procedure Code (CrPC), stating that this “religion-neutral” provision applies to all married women, irrespective of their religious faith, is a significant affirmation of their equal rights under the law. The ruling is significant for three reasons. One, it is a progressive affirmation of the fundamental right to equality, which cannot be taken away by custom, tradition, special legislation, or any other means. Two, the judgement underlines the principle that maintenance after divorce is not a “charity but a fundamental right of all married women”, irrespective of their religion and whatever the method of divorce. And three, it recognises the need to ensure that a divorced woman lives a dignified life.
The July 10 judgement, delivered in response to an appeal by Mohd Abdul Samad challenging the Telangana High Court decision to uphold a family court’s maintenance order for his divorced wife under section 125 of CrPC, clarifies that even in cases of an illegal divorce under the Muslim Women (Protection of Rights on Marriage) Act, 2019, women are entitled to seek subsistence allowance from their husbands. Notably, the Supreme Court (SC) ruling asserts that the Constitutional right to equality has precedence over all other laws and ensures that Muslim women are not deprived of their entitlements and the right to equality, and social and economic security. The ruling shows how far India has progressed on the road to gender justice in nearly the last four decades since the controversial maintenance lawsuit, known as the Shah Bano case, in which the SC delivered a judgement favouring maintenance to the aggrieved divorced woman.
Much has been written about the 1985 Shah Bano case and the subsequent enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 – which is the codification of the Shariah Law – which started a nationwide debate on the rights of Muslim women under Muslim Personal Law and secular law. Suffice it to say that, apart from triggering the birth of Hindutva politics that reshaped India’s social and political ecosystem, the Shah Bano case and the 1986 Act have remained pivotal in advocating for equal rights for Muslim women in marital matters. If four decades ago Muslims refused to accept the application of any secular law barring the Shariah in cases of divorce, over the years there has been a gradual change in response of the community in accepting the primacy of section 125 of the CrPC over personal law. This has been made possible by Muslim women’s education and awareness about their marital rights under India’s secular laws.
The fight against the appalling practice of unilateral triple talaq was led by women who fought a long battle in the SC and succeeded in getting it declared unlawful in 2018. This was an important step in Muslim women’s fight against patriarchy, prejudice, and gender injustice. With increased awareness about their marital rights under secular laws, divorced Muslim women have increasingly sought remedy for litigations over their maintenance right under the CrPC provision. This is not to say that things have changed completely for the better for Muslim women after the annulment of triple talaq but awareness about their legal rights and activism by Muslim women’s organisations has brought about a marked change in favour of gender-just laws. Repeated attempts by Muslim women to challenge and reform personal laws are evidence of this. This is not to state that the Muslim Personal Law, like any other personal law, is entirely regressive. In fact, if we seek gender-just laws, the Muslim Personal Law has a lot to offer.
For decades, Muslim women’s right to maintenance has been a contentious issue. In Islam, among all possible deeds the most abhorred is said to be divorce. This is why there is a lot of emphasis on continuing the marriage by applying all permissible measures to safeguard it. Divorce, an unpleasant and bitter experience, is advocated only in cases of irreconcilable differences or extreme circumstances as a solution to a painful marital relationship. A secular law like section 125 of the CrPC contradicts Islamic Shariah, which mandates specific provision for financial support following divorce. Under Shariah, there is a system that whoever divorces his wife, he provides “mahr” (an amount agreed upon at the time of marriage) and three-month (idaat period) expenses to her
Maintenance is obviously a modern concept and is in divergence with Islamic jurisprudence. Since there is no remedy in the Muslim Personal Law if a divorced woman is unable to maintain herself and her children, the judiciary is compelled to protect maintenance rights of divorced Muslim women under secular laws which require a man to pay maintenance to his former wife if she lacks economic means to support herself and her children. Whether it is the Shah Bano case or the Daniel Latifi ruling in 2001, which extended the Muslim woman’s maintenance rights beyond the idaat period until remarriage, the law and practice have evolved to expand the maintenance rights of Muslim women. In 2009, the court reiterated this principle, while upholding Muslim women’s claim to maintenance under CrPC provision.
In another case in 2019, the Patna High Court ruled that divorced Muslim women can seek maintenance under both section 125 and the 1986 Act. However, despite these rulings, litigations have continued. It has been argued that the 1986 Act, being a special law overrides section 125. Mohd Abdul Samad, who challenged the Telangana High Court’s decision, also argued that a divorced Muslim woman should seek maintenance solely under the Muslim Women Act, 1986. But the SC dismissed it, asserting that section 125 is a secular provision applicable to all women, and Muslim women have the choice to seek maintenance under CrPC provision, the special law, or both. This clear framing of the verdict clears the air over the 1986 Act which many believed limited a divorced woman’s right to maintenance under section 125. In other words, the SC has reaffirmed that a Muslim man’s limited obligation under the personal law cannot override section 125 of the CrPC.
The writer is a senior independent Mumbai-based journalist. He tweets at @ali_chougule
