A few days ago, the Supreme Court ruled that divorced Muslim women could seek maintenance from their former husbands under Section 125 of the Criminal Procedure Code. The judgement was made in a case where a family court asked Mohd Abdul Samad from Telangana to pay Rs 20,000 monthly to his former wife. Samad appealed the decision, and the high court reduced the amount to Rs 10,000 but still required him to pay maintenance. His lawyer argued that Muslim women can seek help under the Muslim Women (Protection of Rights on Divorce) Act, 1986, which offers more support than Section 125 of the Criminal Procedure Code. But the court dismissed it, asserting that Section 125 is a secular provision applicable to all women, and Muslim women have the choice to seek maintenance under the CrPC provision, the special law, or both. It is for the woman to make the choice of the law she wants to be governed by.
Section 125 deals with the order to maintain wives, children, and parents, allowing magistrates to order a person to provide financial support to their spouses, children, or parents. Essentially, it aims to ensure that family members who are dependent on others for financial support receive the necessary maintenance. In 2001, the Supreme Court confirmed that the 1986 Act for Muslim women was in line with the Constitution. The court decided that a man must financially support his ex-wife until she remarries or can support herself.
I shared this news with my mother who had been triple-talaqed in the 1990s by her husband. With two minor daughters and no job, she had to depend on her four brothers (our maternal uncles) and parents for shelter and the upbringing of her children. We sisters lived in the Valley at that time when it imploded into the communal Azadi tehreek which saw the ethnic cleansing of Kashmiri Pandits and secular Muslims. As soon as I turned 18, I started working wherever I could and my sister took out a loan to cover her expenses for medical college. We are both self-made sisters today, both of us self-sufficient in many ways while enduring a lot of emotional trauma, heartbreak, and suffering. We are also proud mothers of sons who are well-versed in how to treat women, unlike our fathers and uncles.
Discussing the Supreme Court ruling with our mother brought up painful memories. However, she did say that if this law had been in place at that time, life would not have been so hard. I told her if the Congress party were in power today, they might have overturned this judgement, just as they did in 1986 to appease Islamists. In 1985, a divorced Muslim woman, Shah Bano, fought the case and won the right to alimony of Rs 180 per month from her husband. However, the Muslim Personal Law Board and Islamists in India took to the streets to protest against the judgement, calling it against Sharia law. Then, the Congress government under Rajiv Gandhi passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which nullified the Supreme Court’s judgement in the Shah Bano case.
The Congress overturned the Supreme Court’s decision just to appease Islamists, which adversely affected all Muslim women in India. Shah Bano was married to a lawyer, Md Ahmad Khan, in 1932 and had five children. At the age of 62, she was disowned by her husband and thrown out of her house in Indore along with her children. She was provided maintenance by the High Court under Section 125 CrPC, but the verdict was challenged in the Supreme Court by her husband and the All India Muslim Personal Law Board (AIMPLB).
What did AIMPLB say in Court? AIMPLB argued, “The courts cannot take the liberty to interfere with laws laid out in the Muslim Personal Law (Shariat) Application Act, 1937.” As per Muslim Personal Law, a man must provide maintenance for his ex-wife only until the Iddat period (the waiting period of three months a woman must observe after divorce before she marries another man). The five-judge Constitution Bench of the Supreme Court, comprising Chief Justice Y.V. Chandrachud (father of the present CJI Dhananjaya Y. Chandrachud), Justices Ranganath Misra, D.A. Desai, O. Chinnappa Reddy, and E.S. Venkataramiah, on April 23, 1985, upheld the High Court order and provided maintenance to Shah Bano.
Ziaur Rahman Ansari was Minister for Environment & Forests in the Rajiv Gandhi government. On the advice of Ansari and the ulema, and to project that the Congress was with the Muslims, the Rajiv Gandhi government brought in the Muslim Women (Protection of Rights on Divorce) Act. As per this Act, the husband would be liable for maintenance during the Iddat period (three months), and the courts only had the power to direct the Waqf Board (not the ex-husband) to provide alimony to an aggrieved wife who is unable to take care of herself. The Indian Constitution, justice for women, and the uniform applicability of the law by the Supreme Court were all set aside at the altar of appeasement politics or vote bank politics by the Congress.
The current Supreme Court ruling did one more thing. It supported gender equality in India by reinforcing the fair application of laws. The court highlighted that some husbands may not realise the emotional and other dependencies of their homemaker wives. It emphasised the unrecognised contributions of women from diverse backgrounds. Women are often burdened with unpaid household tasks, limiting their opportunities for paid work. The court’s recognition of women’s labour through alimony rights promotes equality in modern families.
Now there are various reactions to this ruling which will provide a glimpse into Indian Muslims’ socio-economic realities. One obvious reaction is from the ulema like Maulana Sufiyan Nizami who thinks the Supreme Court should not interfere in the personal matters of Muslims. According to ulema like him, there is enough provision for divorced women, and the Iddat period is enough for the man to pay alimony. This is expected from ossified and obsolete patriarchs who thrive on the ignorance of Muslims to hold sway over 200 million Indian Muslims, but social media seems to be breaking that hold steadily every passing month. Then there is Kamal Faroqui, head of AIMPLB, who has categorically said he and his ilk will oppose any attempt to bring in the UCC.
Scores of Muslim women like me were thrilled with the decision, though we reasoned that the judgement alone is not enough to fully support Muslim women and that additional safeguards need to be established and guaranteed to ensure their well-being and protection. Since we know the cesspool that our society is, a lot of educated and scientifically temperamental thinkers assert that Muslim women should not face harassment for rightfully claiming what is due to them. It is important to ensure that when receiving alimony, Muslim women are not exploited by their families or ex-husbands. Justice in this context depends on the effective enforcement of these rights. Divorced women in patriarchal societies often face stigma, and receiving alimony can lead to them being unfairly judged and labelled negatively.
The BJP predictably welcomed the decision but it was interesting to note the Congress spokesperson and senior advocate Abhishek Manu Singhvi’s comments wherein he welcomed the judgement, emphasising that the obligation to support married women applies irrespective of religion while cautioning against politicising the verdict, stating that it is an established principle of law and should not be coloured by politics. Mahila Congress president Alka Lamba also echoed this sentiment, expressing her happiness with the judgment and emphasizing that it recognises women as individuals, regardless of their religion. A bit hypocritical of them considering their party’s track record of playing politics!
The ruling underscores the primacy of the constitutional right to equality, which takes precedence over all laws and customs. By ensuring that Muslim women receive their entitlements and have access to social and economic security, the judgement represents significant progress in India’s journey toward gender justice. Moreover, it exemplifies a path toward a common civil law (UCC) that transcends political considerations and confrontations. For my mother and sister, it’s a vindication of sorts.
The author is a writer and an educationist from Srinagar. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.
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