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NEW DELHI: The landmark Supreme Court verdict granting Muslim women the right to file petition for maintenance under the “religion neutral” Section 125 of the CrPC has brought to fore the memories of 1985 Shah Bano judgment which had then clearly stated that religion had no role to play in the applicability of this section. The then Chief Justice DY Chandrachud, father of current CJI DY Chandrachud, had said: “Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves.What difference would it then make as to what is the religion professed by the neglected wife, child or parent?”
On Wednesday, a Supreme Court bench of Justices B V Nagarathna and Augustine George Masih reinforced the religion neutrality of Section 125 and said: “The Muslim Women (Protection of Rights on Divorce) Act, 1986 will not prevail over the secular and religion neutral provision of Section 125 of CrPC. We are hereby dismissing the criminal appeal with the major conclusion that Section 125 would be applicable to all women.”
The ruling came on a petition by one Mohammed Abdul Samad, who had approached the top court to challenge a Telangana high court order which had refused to interfere with the maintenance order of a family court. The family court had ordered Samad to pay interim maintenance of Rs 20,000 to his estranged wife. Samad went to high court and contended that they got divorced in accordance with personal laws in 2017 and there was a divorce certificate to that effect. However, the high court did not change the family court order. It only reduced the maintenance amount from Rs 20,000 to Rs 10,000 per month.
The top court in its order reiterated what was said by a five-judge Supreme Court bench in the Shah Bano case.
In its verdict, the bench noted that the Shah Bano judgment had extensively dealt with the issue of maintenance apropos the obligation of a Muslim husband to his divorced wife who is unable to maintain herself, either after having been given divorced or having had sought one.
“The bench (in Shah Bano case) unanimously went on to hold that the obligation of such a husband would not be affected by the existence of any personal law in the said regard and the independent remedy for seeking maintenance under Section 125 of CrPC 1973 is always available,” the bench said.
What was the Shah Bano case?
Shah Bano, a 62-year-old Muslim woman, had in April 1978 filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, who was a lawyer in Indore, Madhya Pradesh. The two were married in 1932 and had five children — three sons and two daughters. Shah Bano was driven out of her matrimonial home in 1975, after a prolonged period of her living with Ahmad Khan and his second wife. Shah Bano went to court and filed a claim for monthly maintenance of Rs 500 for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.
In August 1979, the magistrate awarded her maintenance of Rs 20 per month. On her appeal, the Madhya Pradesh HC enhanced it to Rs 179. Khan challenged HC verdict before the SC. A five-judge SC bench led by then CJI Y V Chandrachud in April 1985 upheld the maintenance granted by the HC with a direction to the husband to pay an additional sum of Rs 10,000 as cost to Bano.
So, what changed after the Shah Bano judgment?
The impact of the SC judgment in the Shah Bano case was diluted by the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by the then Congress government led by Rajiv Gandhi. The 1986 Act stated that the Muslim woman can seek maintenance only during iddat — 90 days after the divorce.
The Supreme Court upheld the constitutional validity of the 1986 Act in 2001, but extended the right of Muslim woman to get maintenance till she re-marries. The Court ruled that Muslim husbands are liable to provide maintenance to their divorced wives beyond the iddat period till she re-marries.
BJP welcomes SC verdict, takes digs at Congress
The BJP welcomed the Supreme Court verdict and was quick to remind the Congress how the grand old party had in the past reversed a similar apex court order in the Shah Bano case. BJP spokesperson and Rajya Sabha MP Sudhanshu Trivedi took digs the Congress as he linked the verdict to the claims of grand old party on protecting the Constitution.
“Rajiv Gandhi government’s decision to enact a law to overrule an apex court judgment granting alimony to divorced Muslim women was one of the biggest threats to the Constitution as it gave primacy to Sharia, Islamic laws,” Sudhanshu Trivedi said.
“Whenever the Congress has been in power, the Constitution was under threat. It (Rajiv Gandhi government’s) was a decision which gave primacy to Sharia over the Constitution. The prestige of the Constitution which was crushed during the Congress government has been restored by this order. The verdict has ended one of the big threats posed to the Constitution,” the BJP leader said.
“There is no secular state where Sharia provisions like halala, triple talaq and Haj subsidy were allowed and the then government by enacting a law had turned India into a partial Islamic state,” he claimed.
The UCC debate
The SC verdict will once again put the focus back on the debate around Uniform Civil Code – which remains one of unfulfilled promises of the BJP. The BJP in its 2024 Lok Sabha election manifesto had pledged to implement the Uniform Civil Code (UCC) across the country after forming a government at the Centre.
The saffron party claimed that Article 44 of the Constitution lists the Uniform Civil Code as one of the Directive Principles of State Policy. “The party reiterates its stand to draw a Uniform Civil Code, drawing upon the best traditions and harmonising them with the modern times,” it said in the manifesto.
However, the road ahead for the BJP on this promise may not be easy as the saffron party is now dependent on allies for the survival of NDA 3. Telugu Desam Party chief Chandrababu Naidu, whose support is crucial for Modi government, openly backs the idea of reservations to Muslims, which the BJP strongly opposes.
On Wednesday, a Supreme Court bench of Justices B V Nagarathna and Augustine George Masih reinforced the religion neutrality of Section 125 and said: “The Muslim Women (Protection of Rights on Divorce) Act, 1986 will not prevail over the secular and religion neutral provision of Section 125 of CrPC. We are hereby dismissing the criminal appeal with the major conclusion that Section 125 would be applicable to all women.”
The ruling came on a petition by one Mohammed Abdul Samad, who had approached the top court to challenge a Telangana high court order which had refused to interfere with the maintenance order of a family court. The family court had ordered Samad to pay interim maintenance of Rs 20,000 to his estranged wife. Samad went to high court and contended that they got divorced in accordance with personal laws in 2017 and there was a divorce certificate to that effect. However, the high court did not change the family court order. It only reduced the maintenance amount from Rs 20,000 to Rs 10,000 per month.
The top court in its order reiterated what was said by a five-judge Supreme Court bench in the Shah Bano case.
In its verdict, the bench noted that the Shah Bano judgment had extensively dealt with the issue of maintenance apropos the obligation of a Muslim husband to his divorced wife who is unable to maintain herself, either after having been given divorced or having had sought one.
“The bench (in Shah Bano case) unanimously went on to hold that the obligation of such a husband would not be affected by the existence of any personal law in the said regard and the independent remedy for seeking maintenance under Section 125 of CrPC 1973 is always available,” the bench said.
What was the Shah Bano case?
Shah Bano, a 62-year-old Muslim woman, had in April 1978 filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, who was a lawyer in Indore, Madhya Pradesh. The two were married in 1932 and had five children — three sons and two daughters. Shah Bano was driven out of her matrimonial home in 1975, after a prolonged period of her living with Ahmad Khan and his second wife. Shah Bano went to court and filed a claim for monthly maintenance of Rs 500 for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.
In August 1979, the magistrate awarded her maintenance of Rs 20 per month. On her appeal, the Madhya Pradesh HC enhanced it to Rs 179. Khan challenged HC verdict before the SC. A five-judge SC bench led by then CJI Y V Chandrachud in April 1985 upheld the maintenance granted by the HC with a direction to the husband to pay an additional sum of Rs 10,000 as cost to Bano.
So, what changed after the Shah Bano judgment?
The impact of the SC judgment in the Shah Bano case was diluted by the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by the then Congress government led by Rajiv Gandhi. The 1986 Act stated that the Muslim woman can seek maintenance only during iddat — 90 days after the divorce.
The Supreme Court upheld the constitutional validity of the 1986 Act in 2001, but extended the right of Muslim woman to get maintenance till she re-marries. The Court ruled that Muslim husbands are liable to provide maintenance to their divorced wives beyond the iddat period till she re-marries.
BJP welcomes SC verdict, takes digs at Congress
The BJP welcomed the Supreme Court verdict and was quick to remind the Congress how the grand old party had in the past reversed a similar apex court order in the Shah Bano case. BJP spokesperson and Rajya Sabha MP Sudhanshu Trivedi took digs the Congress as he linked the verdict to the claims of grand old party on protecting the Constitution.
“Rajiv Gandhi government’s decision to enact a law to overrule an apex court judgment granting alimony to divorced Muslim women was one of the biggest threats to the Constitution as it gave primacy to Sharia, Islamic laws,” Sudhanshu Trivedi said.
“Whenever the Congress has been in power, the Constitution was under threat. It (Rajiv Gandhi government’s) was a decision which gave primacy to Sharia over the Constitution. The prestige of the Constitution which was crushed during the Congress government has been restored by this order. The verdict has ended one of the big threats posed to the Constitution,” the BJP leader said.
“There is no secular state where Sharia provisions like halala, triple talaq and Haj subsidy were allowed and the then government by enacting a law had turned India into a partial Islamic state,” he claimed.
The UCC debate
The SC verdict will once again put the focus back on the debate around Uniform Civil Code – which remains one of unfulfilled promises of the BJP. The BJP in its 2024 Lok Sabha election manifesto had pledged to implement the Uniform Civil Code (UCC) across the country after forming a government at the Centre.
The saffron party claimed that Article 44 of the Constitution lists the Uniform Civil Code as one of the Directive Principles of State Policy. “The party reiterates its stand to draw a Uniform Civil Code, drawing upon the best traditions and harmonising them with the modern times,” it said in the manifesto.
However, the road ahead for the BJP on this promise may not be easy as the saffron party is now dependent on allies for the survival of NDA 3. Telugu Desam Party chief Chandrababu Naidu, whose support is crucial for Modi government, openly backs the idea of reservations to Muslims, which the BJP strongly opposes.
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