The Supreme Court has upheld a divorced Muslim woman’s right to claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973.
Legal experts say that the judgment clears the ambiguity of whether the woman’s right to claim maintenance under CrPC is foreclosed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. The All India Muslim Personal Law Board, which was formed in response to what Muslim religious scholars said was ‘an attempt by the Government of India to subvert Sharia law through parallel legislation’, has criticised the judgment.
In an interview, senior lawyer Yusuf Muchhala, a member of the AIMPLB, gives his perspective on the judgment.
Q. Has the Supreme Court order created a new right for Muslim women under marriage and divorce laws?
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A. No. It has merely reiterated and reaffirmed the judgement, which was given in the Danial Latifi case, which interpreted the 1986 law, which was given way back in 2001. The same judgment was followed in several cases between 2001 and 2024. So, it is not a new principle laid down but it reiterated the principle that the 1986 Act does not foreclose the right of a Muslim divorcee to make an application under CrPC 125.
Q. The judgment has been called a landmark order? How is it so if it is a reiteration of an earlier judgment?
A. You can call every judgment of the Supreme Court a landmark judgment. It has been used by vested interests and those least informed. The Danial Latifi case decided the constitutional validity of the 1986 Act. At that time people opposed to the prevalence of personal law as well as those advocating the Uniform Civil Code, like communal parties like BJP and RSS, spread false propaganda that the 1986 Act had done great injustice to Muslim women.
Q. What are your views on the Shah Bano judgment?
A. The Shah Bano judgment went out of its way to interpret – in a sarcastic way, about the Hadith of the prophet. You see, there was a lot of agitation about it and that issue remains valid: how far does the courts have the right to interpret the Hadith or the Quran? I have always argued that the court has an institutional incapacity to enter into the arena of interpretation of religious scriptures.
Q. One interpretation of the judgment is that it has established that a general law like CrPC is superior to a legislative law. Is this correct?
A. Nothing like that. In this particular case – Mohammad Abdul Samad, interpreted that both laws apply. One is not superior or inferior. On the contrary, the Muslim woman has multiple options – under the 1986 Act, 125 CrPC, and also under the law which criminalised triple talaq. All laws are applied with full vigour.
Q. Women have approached the magistrates for maintenance under 125 CrPC. Why is this becoming a popular option?
A. It is their choice. The law gives them the choice and they go.
Q. How should a woman exercise the choice about which law to use? A. You cannot generalise. The lawyer advising the client should consider the facts and circumstances and advise them. The judge will decide ultimately. That’s the real effect of the law. Depending on the circumstances it can be more convenient for a Muslim lady to go for CrPC 125.
Q. How should lawyers base their advice?
A. All benefits are available to prevent vagrancy. It should not be punitive (to the man). She should not be thrown out on the streets and reduced to a pitiable existence.
