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Introduction
Long back in 1985 came the landmark judgment of the Supreme Court in the case of
Mohd. Ahmed Khan v. Shah
Bano Begum ,
which gave way to controversies in the Muslim world. To do away with the mandate
of the Supreme Court, which was supposedly incorrect in law, the Parliament of
India in the year 1986 came up with a legislation which sought to expressly
overrule the said judgment, it came to be known as the Muslim Women (Protection
of Rights on Divorce) Act, 1986 (hereinafter the 1986 Act). The Statement of
Objects & Reasons of the Act was very clear on the count that not only was the
disagreement which supposedly crept in due to the Shah Bano decision was to be
sorted out, but also proper protection was to be ensured to divorced Muslim
women of the nation. After almost twenty years of the Act having been passed and
with its interpretation and constitutionality well determined under judgments of
the Supreme Court and various High Courts, one would feel that Act and its
interpretation has served the purpose sought to be achieved by the Indian
Parliament in 1986. But unfortunately there remain some fallacies both in the
statute and its interpretation, which have gone unnoticed and need to be looked
into. This article aims at pointing out the same and thus exposing the need to
restore the 1985 mandate of the constitutional bench of the Supreme Court.
Maintenance beyond the iddat period: What does the Muslim personal law say?
It would be necessary, at the very outset, to consider the fundamental question
of law, which the Supreme Court determined in its judgment back in 1985. It was
that whether a divorced Muslim woman could claim maintenance against her husband
even after the expiration of the iddat period (under Muslim personal law)?
The Supreme Court, in order
to answer the above question perused through
Aiyats
241 & 242 of the Holy Quran and came to the conclusion (para. 14 read with para.
22 of the judgment) that the liability of a husband under Muslim personal law to
maintain his wife would cease only if his divorced wife is able to maintain
herself after the expiration of the
iddat period.
Ironically, the Supreme
Court in the subsequent case of
Daniel Latifi v. Union of
India (para. 32
of the judgment) opined that these findings of the Constitutional Bench of the
Supreme Court in 1985 were correct. It is however noteworthy that in the 2001
judgment itself the Supreme Court also opined that recourse under Section 125 of
the Code of Criminal Procedure (hereinafter Section 125 Cr.P.C.) would be
available only via Section 5 of the 1986 Act, thus conditioning the right of a
Muslim women to claim maintenance against her husband beyond the
iddat period
which clearly, keeping in
mind that it also approved of the interpretation of
Aiyats
241 & 242 given by the Constitutional Bench in 1986, is antithetical to the text
of the Holy Quran.
Moreover it should also be
seen that with the radical difference, which exists in the remedies under the
1986 Act and Section 125 Cr.P.C., no prudent man would ever consent to recourse
under the Cr.P.C., which has been made a mandatory requirement under Section 5
of the 1986 Act for recourse to be taken under Cr.P.C. Thus Section 5 is not a
provision, which facilitates the recourse under Section 125 Cr.P.C., but is
virtually a bar put to such recourse. Therefore, as the law stands for today, a
Muslim women is virtually deprived of any claim for maintenance to be made
against the husband beyond the iddat period and thus the 1986 Act, which was
supposed to safeguard the rights of a divorced Muslim women, is clearly working
to the detriment of the same.
Possible Remedy under
Section 125 Cr.P.C. for a divorced Muslim women
After various judicial decisions on this count, it is very clear in law that a
Muslim woman is entitled to maintenance from her husband even beyond the iddat
period under Section 125 Cr.P.C. (if at all she is allowed to take such
recourse). Decisions like
Fuzlunbi v. K. Khader Vali
and Bai Tahira v. Ali Hussain Fidaalli Chothia
, both of which were cited
with approval in the Shah Bano case make it very clear that dower does not fall
within the meaning of Section 127(3)(b) Cr.P.C., as it is not only a
consideration for marriage but also a mark of respect for the women and hence
not a sum payable on divorce. Thus Section 125 Cr.P.C. provides a remedy, which
actually is in consonance with the text of the Holy Quran i.e. the Muslim
husband would be made to pay maintenance to his divorced wife if she is unable
to maintain herself even beyond the iddat period.
Remedy under the 1986
Act: Is it justified & adequate?
The crux of the reasoning of the Supreme Court in 2001, when it upheld the
Constitutionality of the 1986 Act, was that the remedy provided therein served
the purpose Section 125 would otherwise serve and also that personal law was a
reasonable basis for classification.
It is submitted that if one
looks into the recourse provided under the 1986 Act, it would be a three-fold
remedy. Firstly till the expiration of the
iddat period, the
husband has been obliged to maintain the wife. Secondly after the expiration of
the iddat period, the divorced women has her first claim of maintenance against
her own family, but if the family members are unable to maintain the divorced
women, then the ultimate claim for maintenance lies against the
State Wakf Board.
It is submitted that there
have also been different opinions on the liability of the husband under the Act.
Where courts have opined that the husband’s liability under the Act does not
cease on the expiration of the period of iddat , opinions to the contrary also
exist . However the Supreme Court in its decision in the year 2001 made the
position of law clear while choosing the latter i.e. the liability of a Muslim
husband under the Act would cease once the iddat period expires. Therefore after
the law seems to be settled on the count that under the 1986 Act, the husband’s
liability would cease on the expiration of the iddat period, the adequacy and
justifiability of the remedy available under the Act could be looked into.
Following are the two loopholes in the Statue, which need to be considered and
corrected:
Fallacies in the 1986
Act:
Antithetical to Muslim
Personal Law: The
first and the foremost ground on which the remedy could be rejected as
unjustified is that it is antithetical to what the Holy Quran mandates and where
the liability to maintain the wife after the expiration of the iddat period is
that of the husband, there would be absolutely no justification for putting the
burden of the same over the woman’s family or for that matter even the State.
Also the mention of such procedure as mandated under the 1986 Act in the text of
Quran is suspect. In such a circumstance it would nowhere be valid to accept
that, what actually should be the husband’s liability is left to his own choice
under Section 5 of the 1986 Act, by way of which he is virtually absolved of the
liability of maintaining his wife beyond the period of iddat.
Violative of Article 14:
The second ground of
invalidating the statute is one, which was also considered in the 2001 decision
of the Supreme Court i.e. it being violative of Article 14 of the Constitution
as it discriminates against and deprives Muslim Women from the secular remedy
available under Section 125 Cr.P.C. The justification given by the Supreme Court
in 2001 against this argument was simply that personal laws are a reasonable
basis for classification, hence the 1986 Act cannot be said to violate Article
14. It is submitted that the justification given would be of no rescue to the
Act, because even if one concedes to the fact that personal laws are a
reasonable basis of classification, what needs to be looked into is that in what
circumstances are they considered a reasonable mode of classification.
For the sake of an example,
if a Hindu claims violation of Article 14 against the offence of bigamy, it is
very clear in law that because Muslims have four marriages allowed under their
personal law, while Hindus are not, so personal laws being a reasonable basis
for classification, Article 14 is not violated. But at the same time if a Hindu
is deprived of a Marriage under the Special Marriage Act, 1978 while a Muslim at
the same time is allowed (keeping in mind that where both religions do not
recognize inter-cast marriages, both also don’t put a bar on the same), Article
14 would certainly be violated. Both these examples read together make it very
clear that where a person from one religion cannot claim a privilege enjoyed by
another by virtue of his personal law, a person can certainly claim a secular
remedy provided in law which is enjoyed by people of all religions and which is
not barred by the person’s religion.
Therefore when a Muslim
women is virtually being debarred of a secular remedy under Section 125 Cr.P.C.,
when there is no bar against the same in her personal law, not only is Article
14 violated, but also the directive for Uniform Civil Code under the
Constitution disregarded. Thus when the Supreme Court in 2001 opined that the
purpose of Section 125 Cr.P.C. is served by the 1986 Act itself, it was
certainly an incorrect statement because Section 125, Cr.P.C. served a secular
purpose apart from serving the purpose of maintenance, something which a
personal law can never serve and something which is vital keeping in mind the
directive of Uniform Civil Code under the Indian Constitution. Ironically the
Court (in para. 32) opined that, ‘it (the 1986 Act, which was a legislative
overruling of the
Shah Bano case)
actually in reality codifies what was stated in the
Shah Bano case’.
If one peruses through the mandate of the Supreme Court in the
Shah Bano
decision, it was that Section 125 Cr.P.C., being a secular remedy would be above
the remedy under Muslim personal law and a divorced Muslim women would be
entitled to maintenance from her husband even after the iddat period expires. It
is submitted that this mandate can in no condition be paralleled to what has
been stated under the 1986 Act, which virtually absolves a Muslim male from his
liability to maintain his wife beyond the iddat period and which virtually puts
an end to the secular remedy under Section 125 Cr.P.C. for the purposes of a
divorced Muslim wife.
Conclusion
Therefore it is evident from the above analysis that the 1986 Act and its
interpretations are not only against Muslim Personal law but also against the
Right to Equality and the directive for Uniform Civil Code enshrined in the
Constitution of India. Thus it becomes the need of the hour to do away with
Section 5 of the 1986 Act and to effectively make available to divorced Muslim
women the secular remedy under Section 125 Cr.P.C., hence reviving the mandate
of the Supreme Court in its decision in 1985 in the
Shah Bano case.
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The author can be reached at :trbraj1@legalserviceindia.com
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The Shah Bano
Mandate: The Need For Revival
