In what was hailed as a verdict that enhanced Muslim women's empowerment, the Supreme Court cleared the judicial cobwebs on their right to maintenance, saying they have the choice to seek remedy from their spouses under both secular and personal laws. Multiple Constitution bench rulings had made the same points in the past, yet the confusion persisted because of a bunch of subsequent contradictory rulings by various high courts.
Section 125 of the Criminal Procedure Code (CrPC) that deals with maintenance of the wife, children and parents, is religion neutral and can be invoked by all women, including Muslim women, a bench of justices B V Nagarathna and Augustine George Masih ruled in separate but concurring verdicts. The bench was disposing of an appeal by Mohd Abdul Samad challenging a Telangana High Court order last year, which had modified a family court's directive in 2019. The high court had lowered the interim maintenance payable by him to his divorced wife from Rs 20,000 per month to Rs 10,000 a month.
The litigation
After marriage on November 15, 2012, their relationship deteriorated and Samad’s wife left the matrimonial home on April 9, 2016. Subsequently, she initiated criminal proceedings against him on the grounds of cruelty and criminal breach of trust. Samad divorced her through triple talaq on September 25, 2017. A couple of months later, he was granted an ex parte divorce certificate under the Islamic law.
Samad claimed he tried to send Rs 15,000 as maintenance for the iddat period (three months after divorce) mandated by the Muslim Women (Protection of Rights on Divorce) Act, 1986, but his wife rejected it and moved a petition for interim maintenance under Section 125(1) of the CrPC before the family court. He questioned the maintainability of her petition under the secular CrPC, arguing the 1986 Act should apply in the case instead. Samad cited several case laws to argue that a special law like the 1986 Act supersedes the general CrPC in its application. While the 1986 Act limits the husband’s responsibility for alimony to the iddat, the secular law has no such ceiling.
The court agreed with amicus curiae Gaurav Agrawal that remedy under a secular statutory provision of Section 125 of the CrPC is not foreclosed for a divorced Muslim woman through the enactment of a personal law under Section 3 of the 1986 Act to limit the extent of maintenance.
Social justice tool
In multiple previous verdicts, the Supreme Court had described Section 125 of the CrPC as a social justice tool to protect the rights of the weaker sections, irrespective of personal laws, adding the objective is to prevent vagrancy and destitution. Its enactment, they observed, was part of a deliberate secular design to enforce the humane obligation of maintenance or its equivalent. It is not confined to members of one religion or region, but the entire womanhood.
The first big step towards equitable alimony came from the landmark Shah Bano case verdict in 1985, where the Supreme Court for the first time allowed maintenance beyond the period of iddat by a Muslim husband to his divorced wife who was unable to maintain herself. A Constitution bench led by the then Chief Justice of India Y V Chandrachud, father of the present CJI, unanimously held that the obligation of such a husband would not be affected by the existence of any personal law, adding independent remedy for seeking maintenance under Section 125 of CrPC was always available to the wife. It emphasised that Section 125(3) of the CrPC had overriding powers over any personal law.
As the verdict shook up the Muslim patriarchy like never before, Parliament during Rajiv Gandhi's watch as prime minister, introduced a workaround 1986 Act, which restricted the alimony to be paid by the husband to the divorced wife within the iddat period. The Act passed on the onus of monetary support to the hapless woman thereafter to her other relatives or from the Wakf Board. This was widely panned as a ploy to negate the Shah Bano case verdict and challenged in the Supreme Court.
Secular law stands
Ruling on the challenge mounted by Shah Bano's advocate Danial Latifi, the court found the provisions of the 1986 Act prima facie violative of Articles 14 (equality before law) and 15 (prohibition of discrimination) of the Constitution. It, however, read the law down, interpreting it to mean that it does not restrict the alimony to iddat but to start paying from that point in time. The judicial intent was to not foreclose the secular rights of a divorced Muslim woman to pursue remedy under Section 125 of the CrPC.
In the Danial Latifi case, the Constitution bench said, “A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word “provision” indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs.
Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression “within” should be read as “during” or “for” and this cannot be done because words cannot be construed contrary to their meaning as the word “within” would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.”
In the present case, the bench of justices Nagarathna and Masih, in their 99-page verdict, said even in the event of an illegal divorce as per the provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2019 that outlawed triple talaq, the woman can seek financial support from her husband. "Relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC… The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC," it ruled.
Harmonious coexistence
Justice Masih said equivalent rights of maintenance under both the secular provision of the CrPC and Section 3 of the 1986 Act, parallelly exist in their "distinct domains and jurisprudence". He said they could harmoniously exist to let a divorced Muslim woman opt for maintenance under the CrPC despite the 1986 Act.
While Justice Masih was clinical in his dissection of the past judicial pronouncements, Justice Nagarathna brought in a woman’s perspective by reflecting extensively on the plight of the vulnerable homemakers who lack financial security in her concurring verdict. "There cannot be 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 against a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the CrPC or any personal or other law such as the 1986 Act," she said.
Not charity
She went on to say, "this court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity." She emphasised that the 1986 Act is not a substitute for Section 125 of the CrPC, nor has it supplanted it as both can be applied simultaneously at the option of a divorced Muslim woman as they operate in different fields.
"I find that if section 125 of the CrPC is excluded from its application to a divorced Muslim woman, it would be in violation of Article 15(1) of the Constitution of India which states that the state shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth or any of them. Further, our interpretation is consistent with the spirit of Article 15(3) of the Constitution," she ruled.
Family, homemaker
Both financial security as well as the security of residence of Indian women have to be protected and enhanced, she said. "That would truly empower such Indian women who are referred to as 'homemakers' and who are the strength and backbone of an Indian family which is the fundamental unit of the Indian society which has to be maintained and strengthened," Justice Nagarathna said.
Married women who do not have an independent source of income or access to monetary resources in their households are vulnerable, particularly for their personal expenses. She pointed out that in Indian society, it is an established practice that once a daughter is married, she resides with her husband or his family unless due to exigency of career or such other reason she has to live elsewhere.
"In the case of a woman who has an independent source of income, she may be financially endowed and may not be totally dependent on her husband and his family. But what is the position of a married woman who is often referred to as a "homemaker" and who does not have an independent source of income whatsoever, and is totally dependent for her financial resources on her husband and on his family?"
A homemaker works throughout the day for the welfare of the family without expecting anything in return except possibly love and affection, a sense of comfort and respect from her husband and his family, which are towards her emotional security. This may also be lacking in certain households, she said.
Justice Nagarathna observed that an Indian married man must financially empower and provide for his wife, if she does not have an independent source of income, by making available financial resources particularly for her personal needs. For example, financial empowerment tools like a joint bank account and/or an ATM card would place a vulnerable wife in a more secure position in the family, she suggested.
The landmark Shah Bano case
A five-judge Constitution bench of the Supreme Court broke new ground in the 1985 Shah Bano Begum case by unanimously ruling that Muslim women were entitled to maintenance under the secular law
That bench was led by the then Chief Justice of India Y V Chandrachud. It included Justices Rangnath Misra, D A Desai, O Chinnappa Reddy and E S Venkataramiah. Justice Chandrachud is the father of the present CJI D Y Chandrachud
The bench held that the obligation of a husband would not be diminished by the existence of any personal law, adding the independent remedy for seeking maintenance under Section 125 of the CrPC is always available for the divorced wife
If there is any conflict between the secular and personal law on maintenance, Section 125 of CrPC will have an overriding effect, the bench ruled
The 1985 verdict said the wife has the right to refuse to live with her husband who has contracted another marriage, let alone three or four other marriages
Shah Bano had initially sought maintenance from her husband Mohd Ahmed Khan who had divorced her through triple talaq
The verdict drew a firestorm of protest from the Muslim community as it stipulated that the husband had to pay maintenance to his divorced wife beyond the iddat period of three months
To assuage Muslim sentiments, the then Rajiv govt brought the Muslim Women (Protection of Rights on Divorce) Act, 1986
The 1986 Act was upheld by the court but was read down to include the application of Section 125 CrPC
The conclusions
CrPC Section 125 applies to all married women including Muslim married women
Section 125 applies to all non-Muslim divorced women
For divorced Muslim women
Section 125 of the CrPC applies to all those married and divorced under the Special Marriage Act in addition to remedies available under the Special Marriage Act
If Muslim women are married and divorced under Muslim law then Section 125 of the CrPC as well as the provisions of the 1986 Act are applicable. Option lies with the divorced Muslim women to seek remedy under either of the laws or both laws. This is because the 1986 Act is not in derogation of Section 125 but in addition to the said provision
If Section 125 is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC
The 1986 Act could be resorted to by a divorced Muslim woman, as defined under the said Act, by filing an application which could be disposed of in accordance with the said enactment
In case of an illegal divorce as per the provisions of the 2019 Act then,
Relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC
If during the pendency of a petition filed under Section 125, a Muslim woman is divorced, then she can take recourse under Section 125 or file a petition under the 2019 Act
The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125
