Right to maintenance of a divorced Muslim woman has always been a controversial topic. While there exists a secular law which provides for the maintenance of child, parents and wife i.e., the Criminal Procedure Code of 1973, there exists another personal law specifically governing maintenance rights of Muslim women i.e., Muslim women (Protection of rights on Divorce) Act, 1986.

While the former imposes a duty on a husband to maintain his wife after divorce if the wife is unable to maintain herself irrespective of the period, the latter requires a husband to maintain his divorced wife only till the iddat period which is usually three months after divorce. The two laws often conflict each other when it comes to providing alimony to a divorced Muslim woman.

Shah Bano Case (Mohd. Ahmed Khan v. Shah Bano Begum, 1978)

A woman named Shah Bano filed a petition to seek maintenance for herself and her five children under Section 125 of CrPC, 1973. The husband contended that he was required to maintain her only till the iddat period following divorce in accordance with the Muslim Personal Law (Shariat) Application Act, 1937.

The five-judge Constitution Bench of the Supreme Court held that provisions like Section 125 CrPC "cuts across the barriers of religion" and the religion of the spouses is wholly irrelevant. Thus, in this case, the Supreme Court allowed her plea for alimony under Section 125, CrPC, 1973.

The Muslim Women (Protection on Rights of Divorce) Act, 1986

After the Shah Bano judgement, the Government of Rajiv Gandhi passed a law in Parliament overruling the Shah Bano's verdict following the protests of Conservative Muslim groups in 1986. The new law enacted gave primacy to the personal law over the secular law.

Section 3 of the act, provides for maintenance of wife by husband only till iddat period and Section 4 of the act provides for maintenance of the divorced woman after iddat period i.e., payment of maintenance by the relatives or children of the woman if she does not remarry after iddat period. And if the woman has no relatives, then the magistrate may direct the State Wakf Board to maintain her.

Danial Latifi v. Union of India (2001)

Soon after the enactment of the Muslim Women (Protection on Rights of Divorce) Act, 1986, Shah Bano's lawyer Danial Latifi Nafees challenged the constitutionality of the act in the Supreme Court. He submitted that Section 125 of CrPC is meant to protect women from "destitution or vagrancy" irrespective of religion. The MWPRD Act discriminates against Muslim women and violates Articles 14 (Right to Equality) and 21 (Right to life and Personal Liberty) of the Indian Constitution. It was argued by the Centre that personal law is a legitimate basis to discriminate and is not violative of Article 14 of the Constitution.

And the All India Muslim Personal Law Board argued that the act takes care of the fact that women are not left vagrant as it imposes an obligation on the Muslim husband to maintain them till the iddat period. In this case, the five-judge Constitutional bench uphold the constitutionality of the act while extending the obligation of a husband to maintain his wife beyond the iddat period until she remarries.

The court interpreted Section 3 (a) which requires "a reasonable and fair provision and maintenance to be made and paid to her during iddat period", to mean that the husband is required to contemplate the future needs of his divorced wife and is required to maintain her even after the iddat period which may extend to the whole life of the divorced wife unless she gets married for the second time.

Position At Present
After the Danial Latifi Case, several similar cases came before different High Courts which had concurring opinions. Finally, a recent judgement of the Supreme Court clarified on this issue. On 11th July, 2024, in the case Mohd. Abdul Samad v. The State of Telangana & Anr., the two-judge bench of Justices B.V. Nagarathna and George Masih gave its verdict.

The issue before the court was Whether a special legislation - Muslim Women (Protection on Rights of Divorce) Act, 1986 can override a general legislation - Criminal Procedure Code. In this case, the petitioner Mohd Abdul Samad challenged the family court's order to pay a maintenance of Rs. 20,000 per month to his former wife in the Telangana High Court.

The Telangana High Court refused to set aside the order of the family court in accordance with the provisions of Section 125 CrPC, placing an obligation on the husband to maintain his divorced wife. Now, the bench held that a parallel remedy in law which applies universally cannot be taken away by a religious custom, despite it being codified as a legislation. In her opinion, Justice Nagarathna said that Section 125 CrPC is embedded in the text, structure and philosophy of the constitution as a social justice measure.

The remedy of maintenance is an important source of succor for the destitute, the deprived and deserted sections of the women. Further, she said, it is aligned with the power to create special provisions for women under clause (3) of Article 15 and clause (e) of Article 39 A of the Constitution which creates an obligation on the State to ensure that "Citizens are not forced by economic necessity to enter avocations unsuited to their age or strength."

The ruling reiterated that provisions for maintenance under Section 125 of CrPC exists in addition to the provisions for maintenance provided under the Muslim Women (Protection on Rights of Divorce) Act, 1986 not against it. This was first mentioned in the case of Danial Latifi v. Union of India and thus, a Muslim Women's right to ask for maintenance under criminal law is not extinguished by the provisions of a personal law.

Conclusion
The ruling underlines the spirit of the Constitution and keeps the promise of equality that cuts across religious and other identity divides. The ruling, although, based on precedents marks a vital position for the destitute and deprived section of women and it also expands the scope of rights as well as secularize access to remedies.

The judgement also faces several objections by conservative Muslims and All India Muslim Personal Law Board. But in the end, the Muslim Women are now more empowered than before and have rights to alimony like that of women of other religions who can claim rights under the secular act i.e., The Criminal Procedure Code.

Sources:

1. https://indianexpress.com/article/explained/explained-law/what-is-a-divorced-muslim-womans-right-to-maintenance-under-the-crpc-9445641/
2. https://www.thehindu.com/news/national/why-did-the-supreme-court-uphold-divorced-muslim-womens-right-to-maintenance-under-section-125-crpc-explained/article68388665.ece
3. Mohammad Ahmed Khan v. Shah Bano Begum, 2001 SCC SC 1168
4. Danial Latifi v. UOI, 2001 7 SCC 740
5. Muslim Women (Protection on Rights of Divorce) Act, 1986
6. Criminal Procedure Code, 1973