Introduction
After marriage, a woman devotes her life to her family, therefore, she is also known as a homemaker. But what does she get in return?
Dependence on her husband, seen as a financial burden. In every religion, a wife is provided with the support of her husband. It is the duty of a husband to maintain his wife and children. This maintenance is not a charity given by a man, but it is a right of a woman that she receives in return for the time and energy she dedicates towards her family. In Hinduism, it is a husband’s obligation to maintain his wife, children, and parents. He cannot evade his responsibilities.
A Hindu woman is entitled to receive maintenance under the Hindu Marriage Act, 1955, the Hindu Adoption and Maintenance Act, 1956, and under section 125 of Code of Criminal Procedure.[1] However, a Muslim woman was entitled to receive maintenance as per Islamic law, which provides maintenance until the iddat period but after Shah Bano case, Muslim woman can claim maintenance under Muslim Woman (Protection of Rights on Divorce) Act, 1986[2] and under section 125 of Cr.P.C.
The right to claim maintenance under section 125 of Cr.P.C has become a point of controversy, raising the question of whether personal law prevail over general law or not. This question is answered through various judicial pronouncements of the Supreme Court.
Evolution of Muslim women’s right of maintenance
Mohammad Ahmad vs. Shah Bano Begum, 1985
The Shah Bano case[3] is the landmark case for Muslim woman’s right to claim maintenance under section 125 of Cr.P.C. The facts of the case are as follows: the appellant was married to the respondent in 1932 and they had five children. In 1975, the appellant drove the respondent out of the house. In 1978, the respondent filed a petition under section 125 of Cr P.C. for maintenance in the district court of Indore. The appellant appealed to the High Court, arguing that he had already paid her dower and maintenance during her iddat period. However, the High Court dismissed his appeal and increased the maintenance, leading the case to the Supreme Court.
The Supreme Court ruled that a Muslim husband who is capable of maintaining his wife, who is unable to support herself, must provide maintenance to his divorced wife. The court rejected the appellant’s argument that a Muslim husband is only responsible for providing maintenance to his wife until her iddat period ends, as per Quran. The court observed that section 125 of Cr.P.C. is a secular law applicable to all irrespective of religion, making this a cornerstone case.
Nevertheless, many Muslim’s believed that this decision was an encroachment on their religion by the Supreme Court. To counter-out this, the Muslim Woman (Protection of Rights on Divorce) Act, 1986 was enacted. Section 3 of the act states that the husband must maintain his divorced wife during her iddat period, fulfill payment of dower, and any other property given to her by relatives, friends, husband, or husband’s relatives. If the wife is pregnant, he maintain her until the child’s birth. Under section 4 of the act, after the iddat period, any inheritor will maintain her, if there is no inheritor, the responsibility falls on her children or parents, or is not possible, she can claim maintenance from the State Waqf Board.
Section 5 of the Act states that the husband and wife can choose to be governed by section 125-128 of Cr P.C., indicating that this Act does not take away all rights of a Muslim woman to seek maintenance under section 125 of Cr.P.C.
Danial Latifi vs. Union of India, 2001
Enactment of Muslim woman (Protection of Rights on Divorce) Act, 1986 subsequently the Shah Bano case raised concerns that this act is violative of articles 14, 15, and 21 of Constitution. The same concern were raised in the Danial Latifi case.[4] The principal question was whether section 125 Cr.P.C provides maintenance to Muslim woman after the iddat period or not.
The Apex Court upheld the constitutional validity of the Muslim Woman (Protection of Rights on Divorce). Act, 1986 and observed that a Muslim woman is entitled to claim maintenance under section 3 of the Act during her iddat period and after that, she can claim it under section 125 of Cr.P.C. The Apex Court harmonized between section 125 of Cr.P.C. and the Muslim Woman (Protection of Rights on Divorce) Act, 1986.
Shabana Bano vs. Imran Khan, 2009
In this case, the same question was raised whether a Muslim woman is entitled to claim maintenance under Section 125 Cr.P.C or not. The facts of the case are as follows: the appellant was married to the respondent in 2001. She used to be treated cruelly by her husband and in-laws for dowry.
When she was pregnant, the respondent took her to her parental house and warned her that if she did not bring dowry, then she could not be taken back by him. After the delivery of their child, the respondent did not return and divorced her. The appellant filed a petition in the family court in Gwalior under Section 125 of Cr.P.C. For maintenance, but it was rejected by the court, believing that she was entitled to claim maintenance under the Muslim Woman (Protection of Rights on Divorce) Act, 1986.
The same judgment was pronounced in the High Court. In the Supreme Court, the respondent contended that as per Section 3 of the act, he had maintained her during the iddat period, and after that, he had no responsibility to maintain her. The appellant’s counsel argued that the learned judges of the prior courts misunderstood that only the Muslim Woman (Protection of Rights on Divorce) Act, 1986 is applicable to Muslim women.
The Supreme Court held Section 4 of the Act begins with “Notwithstanding anything contained in the foregoing provisions of this Act or any other law for the time being in force”, and Section 5 of the Act expressly stated that the husband and wife can be governed by Section 125-128 of Cr.P.C. This indicates that Section 125 of Cr.P.C. is applicable to Muslim women. A Muslim woman is entitled to claim maintenance even after the iddat period until she remarries.[5]
Mohammad Abdul Samad vs. State of Telangana, 2024
Once again, the issue arises with Mohammad Abdul Samad[6]. The appellant contended that the Muslim Woman (Protection of Rights on Divorce) Act, 1986 being a special law, must prevail over Section 125 of CrPC, which is a general law. But the Supreme Court rejected the contention. The court observed that the Muslim Woman (Protection of Rights on Divorce) Act, 1986, does not restrict the application of Section 125 CrPC; it is a secular law that treats all women equally and Section 125 of CrPC is an additional remedy within the Act. It is universally applicable to all women, and it is the duty of husbands to financially empower their wives who are not financially independent.
Conclusion
A Muslim woman has been suffering for years for the equitable right of maintenance. Through various pronouncements, the judiciary is trying to provide them just and fair maintenance as a Hindu woman; however, discrimination on the basis of religion is still prevalent in India. To bring equality and provide justice to all women, it is necessary that both judiciary and legislation come together. Article 44 of the Indian Constitution provides for the Uniform Civil Code. Now, it is the duty of the legislature to implement it and make a secular law on matters related to personal laws.
[1] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1973 (India).
[2] Muslim Woman (Protection of Rights on Divorce) Act, 1986, No. 25, Acts of Parliament, 1986 (India).
[3] Mohd. Ahmed Khan vs Shah Bano Begum And Ors, 1985 AIR 945 (India).
[4] Danial Latifi & Anr vs Union Of India, AIR 2001 SUPREME COURT 3958 (India).
[5] Shabana Bano vs Imran Khan, 2010 (1) SCC 666 (India).
[6] Mohammad Abdul Samad v. State of Maharashtra, 2024 SC.
Author: Richa Pathak is a B.A.LL.B (Hons) – 4th year student at S.S. Khanna Girls’ Degree College (Constituent of University of Allahabad)
