-By Subhrodeep Maiti
Abstract
This research paper discusses the significance of Section 125 of the Code of Criminal Procedure (CrPC) in the cases of the maintenance of Muslim Women. There has been significant legal debate over the applicability of S-125 of CrPC to the maintenance of Muslim Women. This research paper examines the laws and legal framework that governs the maintenance of Muslim Women. This research paper studies about the relationship between personal law and statutory law by observing various Judicial Proceedings and landmark judgements of the Supreme Court. This paper argues that Muslim personal law provides for maintenance during the period of Iddat but, the broader provisions of Section 125 of the CrPC serve as a secular remedy ensuring financial justice for destitute women, regardless of religious identity.
Introduction
In India, the maintenance laws aim to provide financial support to the dependents, that is, women, children, and aged parents, for their sustenance. Section 125 of the CrPC is a secular provision aimed at all citizens of India, without judging their religion. However, its application to Muslim women has become a matter of huge contention due to the hairy intersection of secular law with the Islamic principles that govern personal laws.
The provision of maintenance to Muslim women has provoked a series of storms in the political and social scenarios of India over time. In contrast to Hindu and Christian laws, which expressly provide details about the post-divorce maintenance to be conferred, Islamic law bears a different tenor and traditionally provides for a maintenance period until roughly three months after the divorce, referred to as the ‘iddat’ period. Beyond this short term, the financial responsibilities revert back to the respective families or the communities of the women. The Shah Bano case of 1985 has brought this pertinent issue into contemporary debate, leading to the possibility of discussions, nation till 1986 concerning the purpose of Section 125 CrPC and to subsequently come out with another piece of legislation, namely, the Muslim Women (Protection of Rights on Divorce) Act, 1986. Although the Act originally spearheaded an exclusion for Muslim women from the provision of Section 125, a slew of interpretations by the judiciary has started ensuring that they are continually protected under Indian law.
This paper analyses the legal framework around the maintenance issue for Muslim women, assessing through statutory provisions and leading judicial pronouncements. It also tries to examine how far Section 125 CrPC would apply to Muslim women notwithstanding the existence of separate personal law pertaining to them.
Historical Background
Historically, the issue of maintenance for Muslim women has been a contentious legal and political matter. In ancient India, maintenance constituted a few customary laws of various religious denominations. Hindu and Christian personal laws have expressly provided for post-divorce maintenance, while Islamic law has formulated a post-divorce mode based on the iddat knowledge limited for a few months after the dissolution of marriage, restricting the custodial maintenance means extended only for a short time following divorce. With regard to such personal laws, British colonial administration heavily influenced the form and nature of the Indian legal system. The essence of personal laws refers to the codifying Hindu and Muslim family affairs separately, inducing British rule in India. Muslim women’s rights on account of maintenance were also in synergy with the principle of Sharia, meaning obligatory maintenance for the wife only during iddat. What remained was the hope for a secular redressal of the CrPC, set up in 1898 for miscellaneous other purposes and later in force revised in 1973, which instituted a similar maintenance remedy for married women extended to all women irrespective of religion in Section 125.
In post-Independence days, Indian legislation grappled with the delicate and difficult balancing act of satisfying personal laws and the secular constitution. The Hindu Code Bill of 1955-56 made some headway towards liberalization in terms of personal laws, but parallel codification of Muslim law met with strong armed resistance framed in terms of religious free struggle. A state of ambiguity about the right of Muslim women to claim maintenance bred vexations in court, giving way for judicial interventions. The Shah Bano case (1985) raised the issue for public debate concerning the applicability of Section 125 CrPC to Muslim women and the Muslim Women (Protection of Rights on Divorce) Act, 1986, subsequently promulgated. While the very purpose of the Act was to take such Muslim women out from the purview of Section 125, interpretations of the judicial organization have confirmed acceptance of Muslim women under all the protections Indian law provides. This paper intends to elucidate the legal setup on the issue of maintenance for Muslim women, taking into consideration the statutory provisions and landmark judicial pronouncements, which further analyze the extent to which Section 125 CrPC is applicable to Muslim women notwithstanding that they fall within a completely different set of personal laws.
What Does Muslim Law Say?
Under the traditions of Muslim personal law, which find their basis in the Quran, Hadith, and interpretation by scholars, maintenance (nafaqah) is to be provided for the wife in marriage by the husband. The husband owes his wife, by this law, food and clothing, shelter, and medical treatment during her marriage. There is an obligation of support for the wife, after divorce, by the husband only for the iddat period preceded by some alimony lasting for three menstrual cycles, that is, three months. The primary justification for iddat is to grant some financial support during transition and ascertain whether the wife has a child or is pregnant, which would impact the obligations of parenthood. Classical Islamic jurisprudence clearly indicates, beyond the iddat, the husband will not provide further financial support unless his wife is pregnant or asks for nursing support. The onus of financial support shifts thereafter, according to that school, from the husband to the woman’s family or institutions of the community. Yet some interpretations do justify the case of extended support on the grounds of principles based on justice and fairness. The Muslim Women (Protection of Rights on Divorce) Act, 1986, sought to make alignments in Indian Muslim law, based on traditional Sharia considerations, bringing it down to the iddat period. But the judgment of the Supreme Court in the case of Daniel Latifi v. Union of India declared that maintenance was to be made subservient to a fair and just provision for future needs within iddat, thereby extending financial obligation beyond classical Islamic injunction. Additional to this is the place of Mata’a-a provision in Islamic law also referring to the question of compensatory maintenance, thereby pushing the idea of funny judgment-a balance for the divorced woman. While traditional Islamic law limits the concept of maintenance after divorce, Indian courts have used the construction of the financial rights of Muslim Women broad enough to encompass their rights with that of constitutional rights of gender justice and social security.
What is iddat?
Iddat, in Muslim Law, is a waiting period/time which a woman has to observe the disposal of her marriage either by death or divorce of her husband. During this period of time she can’t re-marry any other person. This is observed to establish paternity and to give time to the Woman to mourn.
There are different periods of time for different women
- The waiting period (Iddah) of a widow is four months and ten days
- The waiting period for a menstruating woman is, three monthly periods
- The waiting period for a pre-menstrual girl is, three lunar months
- The waiting period of a woman who has no monthly courses is three months
- If a Muslim man marries a Muslim woman then divorces her before touching her then there is no iddah.
What Does Section 125 CrPC Say?
Section 125 CrPC is a provision, which is secular in nature, for the maintenance of wives (including divorced wives), children, and parents who are unable to maintain themselves. If any person with sufficient means refuses or neglects to maintain his wife, children, or parents, the magistrate may pass an order for him to provide a monthly allowance. Thus, Section 125 aims to prevent vagabondage or want amid “vagrants,” who are likely to be dependent and unable to fend for themselves, regardless of their religion. The interesting thing is that the term “wife” also includes a divorced woman in this context, thus giving a unique leverage to seek maintenance against one’s religious personal laws.
Major features of Section 125 CrPC are:
1. Applicability to all religions: The provision of law is secular and applies to every person, irrespective of their faith.
2. Provision for divorced wives: A divorced woman shall have the right of maintenance if she cannot maintain herself.
3. Preventing Destitution: The primary motive is to safeguard the financial stability of dependents that are neglected.
4. Quantum of Maintenance: Dependent on husband’s capacity for earnings and wife’s needs.
Judicial Interpretations
1. [1]Mohd. Ahmed Khan v. Shah Bano Begum (1985)
Facts of the Case
Mohd Ahmed Khan married Shah Bano Begum in 1932, who bore him three sons and two daughters. In 1975, when she was 62, Shah Bano was disowned by her husband and turned out of the house with two of her children. In 1978, she filed an appeal with the Judicial Magistrate of Indore, as she was not getting the monthly maintenance of Rs. 200 which the husband was supposed to pay; she sought Rs. 500 per month. It was then on November 6, 1978 that the husband, by way of triple talaq, completely disowned Shah Bano, making it an excuse to avoid paying maintenance. The magistrate in August 1979 ordered 25 rupees per month by way of maintenance. In July 1980, Shah Bano moved to the High Court of Madhya Pradesh seeking a decision to increase maintenance to Rs. 179, and the court granted her request. The husband then approached the Supreme Court challenging the high court’s order through a special leave petition.
Issues Raised
The issues that were presented in the Shah Bano case included:
1. Does the definition of “WIFE” encompass a divorced Muslim woman?
2. Does it supersede personal law?
3. Is a Muslim husband’s duty to provide maintenance for a divorced wife in conflict with section 125 and Muslim Personal Law?
4. What is the amount payable upon divorce? Is the meaning of Mehar or dower not included in the sum payable upon divorce?
Judgement
The Chief Justice Y.C. Chandrachud announced that the Shah Bano case was decided with the rejected appeal of Mohd. Ahmed Khan. The Supreme Court ruled that Section 125 of the Code of Criminal Procedure applied to all persons without regard of their religion and so eliminated any discrimination. The court clarified that Section 125(3) of the Code was also applicable to Muslims and, whenever there was a conflict between that section and Muslim Personal Law, the provisions of Section 125 would override. In the end, the Supreme Court was quite clear in saying that, according to the Muslim Personal Law for Maintenance, the duty of a husband to pay for his divorced wife, if she is unable to live on her own, continued beyond iddat period. The court strongly criticized the current rule in the Muslim Law as inhumane or otherwise faulty, since it left a divorced wife in such a position that she was entirely without means of support. The further explained that by the payment of Mehar, a sum given by a husband to his wife upon the dissolution of their marriage, the husband does not absolve himself from the obligation to provide maintenance for his wife. After full legal consideration, the Supreme Court finally ruled that when the divorced wife was able to earn her own livelihood, the husband would not be liable for maintenance. But, in case the wife continued to be unable to maintain herself after the expiry of the iddat period, she was entitled to maintenance or alimony under Section 125 of the Code of Criminal Procedure.
Enactment of the Muslim Women Protection of Rights on Divorce Act, 1986
After Shah Bano Case in 1985, to nullify the judgement of Supreme Court, the Congress Government at that time passed the Muslim Women Protection of Rights on Divorce Act, 1986. Section 3 of the 1986 Act guarantees the payment of maintenance to a divorced Muslim woman by her former husband only during the period of iddat period, that is usually of three months, which a woman must observe after the death of her husband or a divorce before she can remarry. This was against the SC ruling in Shah Bano Case, where SC held that if the wife is unable to earn her own livelihood, the husband will have to pay maintenance even after the iddat period. Section 3(3)(b) says that the amount shall be equal to the Mahr/ dowry which was paid by the husband during the marriage.Section 4 said that if after the iddat period the women has not remarried or is unable to maintain herself after iddat period, the Magistrate may make an order to her relatives who would inherit her property upon her death to pay maintenance to her considering the needs of her, the standard of life she used to live during her marriage and the capacity of her relatives to pay.The relatives shall pay the maintenance in the same proportion as they would inherit the property.If the woman have children the magistrate will first order her children to pay maintenance. If they can’t the responsibility will fall on the parents of the woman. If the parents also fail, the magistrate will order the said relatives. If there are no inherent relatives or they are unable to pay, the Magistrate can direct the State Waqf Board to pay the maintenance.
2. Daniel Latifi v. Union of India, 2001
Facts of the case
The case pertains to the Muslim Women Protection of Rights on Divorce Act, 1986, which was contested in court. In 1985, Shah Bano, a divorced Muslim woman, received maintenance from the Honourable Supreme Court according to Section 125 of the CrPC. Her spouse had provided her with the “mahr” and maintenance during the iddat period, after which he had no further obligation to continue payments. Simultaneously, the court in the Shah Bano case determined that if a divorced Muslim woman is unable to support herself, she is entitled to maintenance beyond the iddat period. In the aftermath of the Shah Bano ruling, the Indian Parliament enacted the Act. The purpose of this Act was to confine the husband’s maintenance responsibility to just the iddat period. In this situation, the petitioner (Daniel Latifi) and others submitted a petition questioning the constitutionality of the 1986 Act on the basis that this Act unjustly limited the maintenance rights of Muslim women in comparison to women of other faiths.
Issues
- Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, limit the maintenance rights of divorced Muslim women to only the iddat period?
- Whether this limitation constitutes a violation of Constitutional rights by discriminating against Muslim women compared to women of other religions who can claim maintenance under the CrPC without such limitations?
- Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, violate the Constitution of India?
Judgement
The Apex Court additionally determined that the Act is applicable specifically to Muslim women who have been divorced under Muslim law. Nevertheless, the Act is not applicable to those who are divorced under different laws. It does not include deserted or separated Muslim wives. Support is necessary only during the iddat period; afterwards, the responsibility shifts to the woman’s relatives or, if required, to the State Wakf Board. The court decided that a Muslim husband is obligated to provide reasonable and fair maintenance for his divorced wife, which encompasses support extending beyond the iddat period. This maintenance must be arranged during the iddat period, as mentionedin the Section 3(1)(a) of the Act. Additionally, it was held that the husband will have to continue to pay maintenance to his wife under Section 3(1)(a)beyond iddat period. If a divorced Muslim woman who has not remarried and is unable to sustain herself after the iddat period, she can seek maintenance from her relatives. According to Muslim law, family members should pay maintenance based on the inheritance they get from her, as stated in Section 4 of the Act. The State Wakf Board may be ordered by the court to pay the woman’s maintenance if her family members are unable to give the required financial support. Therefore, the Honourable Supreme Court upheld the Act’s constitutionality. The Act does not violate Articles 14, 15, and 21 of the Indian Constitution, the court further said. It came to the conclusion that when the state creates a special provision for a certain community that is on par with or better than the general legislation, there is no discrimination. The Act does not nullify or conflict with the ratio decidendi of the Shah Bano but simply codifies it.
Conclusion
Judicial interpretations have confirmed the entitlement of a Muslim woman to maintenance under Section 125 CrPC, aside from the legislative attempts to restrict a divorced Muslim woman’s maintenance right. The Supreme Court has played a pivotal role in ensuring that divorced Muslim women are not left in a state of destitution, ensuring protection to the constitutional values of equality and social justice. However, this demands legal literacy and policy changes, which would materially benefit the financial security of Muslim women in India. Achieving an equilibrium between personal laws and secular legal principles is a challenging task that requires a dynamic approach from both the judiciary and policymakers. Equal rights in maintenance matters would require legal evolution, social awareness, and active legislative reforms for ensuring gender justice and dignity.
Subhrodeep Maiti, a passionate 2nd-year law student at the Department of Law, University of Calcutta,
