Introduction

The plight of women divorced by their husbands is just deplorable in any community or religion. The main concern is the new financial responsibility for which they are not ready yet. Even in this age of a high percentage of education among women, jobs are not available at their convenience. There is always competition in this field. For the illiterate and uneducated women, the position is just scary. Undoubtedly, the divorce brings for the women at large, the most painful and thorny phase of their lives. If they are burdened with the upkeep of their children also, then this journey becomes a harrowing tale of frustration and miseries. 

Taking into account these grim facets of life, our lawmakers have introduced the provision of alimony under Section 125 of the Criminal Procedure Code of 1878. However, in the case of Muslim divorced women, the situation has been hazy. It is argued that in the presence of Muslim personal law to this effect, namely, the Muslim Women (Protection of Rights on Divorce) Act, 1986, the said provision of the Cr.P.C. would not apply. This long-drawn perception has, however, been busted by the Supreme Court of India in a recent judgment of Mohd. Abdul Samad v State of Telangana, 2024 SCC OnLine 1686, decided on 10.07.2024. In this case, a Supreme Court Bench comprising justices BV Nagarathna and AG Masih, ‘decisively rejected the argument that the provisions of Section 125 Cr.P.C. do not apply in view of there being a personal law for Muslims, and that the Muslim Women (Protection of Rights on Divorce) Act, 1986, will prevail over the secular law.’1 Pronouncing the verdict, Justice Nagarathna said, “There cannot be the disparity in receiving maintenance on the basis of the law under which a woman is married or divorced. The same cannot be a basis for discriminating a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 Cr.P.C. or any personal or other law such as the 1986 Act. I, therefore, hold that Section 125 of the Cr.P.C. cannot be excluded from its application to a divorced Muslim woman irrespective of the law under which she is divorced.”2 

The apex court was hearing a petition filed by a Muslim man, Mohd. Abdul Samad, against the order of the Telangana High Court, which gave direction to pay Rs. 10,000 interim maintenance to his former wife. The appeal mentioned that a divorced Muslim woman cannot seek maintenance under Section 125 Cr.P.C. because the 1986 Act will prevail over it. Senior Advocate Gaurav Aggarwal assisted the court as amicus curiae.

Previous History

In this context, it may be noted that Muslim women's right to maintenance has been a contentious issue. While the Act of 1986 says that maintenance is paid to a Muslim woman by her former husband within the iddat period (three lunar months after the divorce), Section 125 Cr.P.C. is a penal provision requiring a man to pay maintenance to his wife or former wife who is “unable to maintain herself". From a bare perusal of the Supreme Court's judgments in this regard, it is crystal clear that its stand on this issue has been the same throughout. ‘From the 1985 Shah Bano case to the Daniel Latifi ruling in 2001, the Supreme Court has maintained that a Muslim man's limited obligation under personal law cannot override Section 125 of the Cr.P.C., despite resistance to the rulings both politically and from within the community.’3 The recent judgment of the apex court delved into the historical context of Muslim women's rights. In the landmark Shah Bano case 4, the Supreme Court had ruled that Muslim women were entitled to maintenance under Section 125 Cr.P.C. However, this decision was later countered by the Act of 1986 by the Rajiv Gandhi government. The new law restricted maintenance for a woman to ‘iddat’ period and alimony for the child till two years from divorce.

However, the philosophy laid down by the apex court in Shah Bano's case of 1985 has continued to live through times, noted the Bench, as it cited its subsequent ruling in the case of Daniel Latifi v Union of India,5 In this case, another Constitution Bench of the Supreme Court relied extensively on the 1985 Shah Bano judgment and interpreted the 1986 Act to ensure it did not deprive Muslim women of the protection afforded under the Section 125 of Cr.P.C. The Court upheld the constitutional validity of the Act of 1986 but at the same time, held that a Muslim husband is responsible for paying maintenance to his divorced wife may extend beyond the iddat period, as well as for making reasonable and fair provisions for his divorced wife's future.

In the recent judgment, the apex court held that the Act of 1986 ‘continues to operate within the same juridical compass as the judgments in Shah Bano and the reasons for upholding the constitutionality of the law in the Daniel Latifi case cannot be lost sight of.’6 The Apex Court further held, “The crux of the reasoning in Daniel Latifi is that the 1986 Act is a social welfare legislation that seeks to provide an additional right and thereby, an additional remedy. Therefore, the 1986 Act does not take away rights that divorced Muslim women have either under personal law or under Section 125 of the Cr.P.C.”7

The Salient Features of the 2024 Judgment

1. “The rights created under the provisions of the 1986 Act are in addition to and not in derogation of the right created under Section 125 of the Cr.P.C.” (Justice Nagarathna)
2. The passing of the 1986 Act, cannot militate against or dilute the salutary nature of Section 125 of the Cr.P.C. The object of this provision is to save a wife including a divorced woman from deprivation and destitution.
3. The right to seek maintenance under Section 125 of Cr.P.C. 1973 is invokable even during the sustenance of marriage and, thereby is not contingent upon divorce.
4. Section 125 of the Cr.P.C. applies to all married women including Muslim married women.
5. A Muslim woman's right to claim maintenance under criminal law cannot be extinguished even if she has claimed her rights in personal law.
6. Any discrimination in matters of alimony under the country's secular laws would be regressive and against gender justice equality.
7. The apex court ruling has implications for Article 44, which says that the state shall endeavour to secure a uniform civil code ‘throughout the territory of India'.
8. Maintenance is a facet of gender parity and enabler of equality, not charity. A destitute Muslim woman has the right to seek maintenance under Section 125 of the Cr.P.C. despite the enactment of the 1986 Act.
9. If a divorced Muslim woman approaches the magistrate for enforcement of her rights under Section 125 of the Cr.P.C., she cannot be turned away to seek relief only under Section 3 & 4 of the 1986 Act. In other words, such a divorced Muslim woman is entitled to seek recourse to either or both the provisions. The option lies with such a woman.

The Vulnerability of the Divorced Women Highlighted

In the judgment, Justice Nagarathna while highlighting the vulnerability of women who lack independent sources of income and access to financial services, held, “I would like to advert to the vulnerability of married women in India who do not have an independent source of income or who do not have access to monetary resources in their households, particularly for their personal expenses.” In this connection, she stressed the need for their financial empowerment, and held, “Such financial empowerment would place such a vulnerable wife in a more secure position in the family.” 8 Thus, Justice Nagarathna has successfully pinpointed the real problem of the Muslim divorced women, who are left without sufficient financial backing to fend for themselves, all alone in this world. Though, this is true for all the divorced women belonging to any caste, creed or religion.

Conclusion

The current judgment may rightly be termed as a landmark as it has, for the time being, cleared the mist of doubt in regard to the payment of maintenance allowance to Muslim divorced women. Whether it should be paid as per the provisions of the 1986 Act which was introduced in the aftermath of Shah Bano’s case or the provisions of Section 125 of the Cr.P.C. would also be applicable in such cases. The Apex Court, this time, has clearly held that such claims can also be put forward under Section 125 of the Cr.P.C. The divorced Muslim woman will have the option to put her maintenance application under the provisions of the 1986 Act or the Section 125 of the Cr.P.C. In any case, the personal laws can't prevent the use and implementation of the laws of the land, in this case, Cr.P.C. This enunciation will secure to Muslim divorced women, the right to equality and gender parity, enumerated under the Indian Constitution. Moreover, this judgment has highlighted the most pitiable condition of the divorced women including the Muslim women. It has also urged the Muslim men to ponder over this facet of divorced women also. That is why Justice Nagrathna has rightly emphasized the fact that maintenance must not be viewed as charity but a fundamental right. It is a right to overarching the different religious domains. Thus, this judgment is not only based on legal premises but has its foundations well-laid on the basis of humanitarian principles also. Lastly, the judgment is a reminder of the fact that the personal laws are not sacrosanct and can be overruled for the benefit of aggrieved people.

However, things are not going to change as expected if we ignore other supporting structures, such as the implementation of law in letter and spirit by the government machinery. It will also require timely legal help which is not easily available at certain times. Last but not the least is the constant social support which is not forthcoming as a general rule. People's inclination towards their personal laws obscure their views to see things with a different perspective. By adopting a progressive viewpoint, they can erase many of the evil and painful practices prevalent in our society from the time immemorial. Lastly, the introduction of the Uniform Civil Code in India is the urgent need of the hour. It would cover many of our malaises in due course.

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References:

1. Utkarsh Anand, Muslim women entitled to seek alimony, says SC, Hindustan Times, Jul 11, 2024.
2. Ibid.
3. Editorial, The Indian Express, Jul 12, 2024.
4. Mohd. Ahmad Khan v Shah Bano Begum and others, (1985) 2 SCC 556.
5. (2001) 7 SCC 740.
6. Utkarsh Anand, Muslim women entitled to seek alimony, says SC, Hindustan Times, Jul 11, 2024.
7. Mohd. Abdul Samad v State of Telangana, 2024 SCC OnLine 1686.
8. Ibid.