The Supreme Court's July 10 verdict allows Muslim women to claim maintenance under secular law. - AFP
NEW DELHI: India’s top court has ruled that the right of Muslim women to seek maintenance from their husbands after divorce is not limited by Islamic religious law, an order that has been welcomed by women’s rights groups and Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP).
The July 10 order by the Supreme Court endorses the right of Muslim women to claim maintenance under secular law – in addition to what is guaranteed to them under the country’s Muslim personal law.
It is a shot in the arm for women like Shayara Bano, 49.
Bano was undergoing treatment for a liver ailment in 2015 and living at her parents’ house in the city of Kashipur, in the northern Indian state of Uttarakhand, when she received a letter from her husband that left her “absolutely taken aback”.
Her husband, who is based in the city of Allahabad more than 600km away, had chosen to divorce her abruptly – stating talaq (divorce) three times in the letter, as per a controversial practice that has since been outlawed.
The housewife, who was then 40, found herself with no financial support and was forced to rebuild her life from scratch.
“The men who divorced and abandoned their wives without fear will now have the fear of alimony,” Bano said of the Supreme Court’s ruling.
“Divorce rates will fall and women’s status will improve.”
The July 10 order stated that all married and divorced Muslim women are entitled to claim maintenance from their husbands under Section 125 of the Code of Criminal Procedure (CrPC), 1973.
Under this secular law, women are entitled to a monthly allowance from their husbands, the amount and duration of which in each case is determined by a judge on the basis of the man’s earnings as well as the woman’s needs.
The court ruled that Muslim women have the option to seek remedy under either this secular law or the Muslim Women (Protection Of Rights On Divorce) Act, 1986, which is based on Islamic tenets.
They can also choose to file claims under both.
Unlike a recurring monthly payment under the secular CrPC, the 1986 Act entitles divorced Muslim women to only “a reasonable and fair provision and maintenance” – usually a lump sum – that is to be paid by her former husband within the three-month iddat period from the date of divorce.
Iddat refers to the period after divorce when the woman is not allowed to remarry or have sexual intercourse with anyone.
Muslim women are also meant to receive the mahr (dowry) amount that was agreed to at the time of marriage, in addition to any property the woman may have received before her divorce, along with an additional allowance for her children, if any.
The responsibility for any maintenance beyond the three-month post-divorce phase, if necessary, is placed back on the woman’s parents, relatives or children or even the local wakaf board, but not the former husband, with whom all contact must cease at the end of iddat.
Matters pertaining to marriage, divorce, adoption and inheritance are usually dealt with under various religious laws in India, only some of which are codified. Hindus, Sikhs, Muslims and Christians, for instance, have their own set of rules.
However, the debate around the limits of personal law in a secular country has always been contentious. The Muslim Women (Protection of Rights on Divorce) Act was enacted in 1986 to water down a judgment from the Supreme Court in 1985 that was similar to the one in early July.
The court had back then also endorsed a divorced Muslim woman’s right to a monthly allowance under the secular Section 125 of the CrPC, angering conservative Muslims.
In this case, Shah Bano had been granted a monthly allowance of 179.2 rupees in 1980 after being divorced by her advocate husband, Mohd Ahmed Khan, who had an annual income of 60,000 rupees.
As opposition to the order grew among Muslims, the Congress government at that time began worrying about a fall in political support from the community. It overruled the order by introducing the “syariah-compliant” 1986 law, one that many say circumscribes alimony rights for Muslim women.
Bano, under pressure from her community, also withdrew the maintenance claim she had filed.
This rollback proved to be an important turning point in Indian politics as it fuelled the rise of right-wing Hindu forces amid accusations that the Congress had appeased conservative Muslims.
Its ripples are felt even today as the BJP continues its push for a Uniform Civil Code, which will replace the multiplicity of personal laws in India.
Such a code has been a top demand of Hindu nationalists, who feel that Muslim personal law is prejudiced against women, even though other religious laws are also not entirely gender-friendly.
The BJP, which had termed the 1986 Act a “violation of the sanctity of the country’s highest court”, welcomed the recent order, with spokesman Sudhanshu Trivedi asserting: “The verdict has ended one of the big threats posed to the Constitution.”
The reaction from Congress has been relatively muted, with its MP Gaurav Gogoi saying the party “respects the decisions made by the Supreme Court”.
The move has also been welcomed by independent women’s rights groups.
Zakia Soman, founder of the Bharatiya Muslim Mahila Andolan (BMMA), a non-government women’s rights group, told The Straits Times the Supreme Court’s July order puts an end to a longstanding legal discrimination that Muslim women, unlike their counterparts from other religions, have endured at India’s lower courts, where family matters are mostly dealt with.
“The 1986 law went on to form the common sense of the community, as well as of the judiciary, particularly the lower judiciary and those judges sitting in family courts,” she noted.
“So, for instance, if Muslim women approached the courts under Section 125 of the CrPC, the lawyer and the magistrate would say there is a separate law for them, asking them to approach courts under that.”
“This judgment is unequivocal, and it will now support any woman who wants to stand up and demand her right to maintenance under the CrPC,” Soman added.
The recent judgment comes after the country’s top court in 2017 outlawed the controversial “triple talaq”, or “instant divorce”, a practice among Indian Muslims that allowed a husband to divorce his wife by stating the word “talaq” three times in any form, including in a phone message.
Bano, one of the many victims of this practice, was among the several petitioners, along with the BMMA, who successfully contested the custom in the Supreme Court.
But this 2017 order was opposed by several Muslim groups.
Now, the court’s July judgment is also provoking opposition, including from influential conservative Muslims who are again defending their personal laws.
The All India Muslim Personal Law Board (AIMPLB), a non-government organisation that was instrumental in opposing the Supreme Court’s 1985 judgment, adopted a resolution on July 14 stating that the court’s judgment was “against Islamic law”.
AIMPLB spokesman S.Q.R. Ilyas told ST that Indian Muslims are governed by the Muslim Personal Law (Shariat) Application Act, 1937, and that the order is “against the guarantees given to the Muslim community in India”.
The board plans to approach the government, as well as opposition parties, to express its objections and have the judgment “rolled back”.
“Whatever constitutional, democratic and legal avenues are available to us, we will exhaust all these,” Dr Ilyas said.
“In Islamic law, marriage is a contract between husband and wife. Divorce ceases that contract... Then how can she go for this alimony for the entire life?” he asked. - The Straits Times/ANN
