Facts in Brief

In this case, the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged before the Supreme Court. The Act had been passed to appease a particular section of society, with the intention of rendering the decision in Mohd. Ahmed Khan v. Shah Bano Begum ineffective.

In Shah Bano, the husband had appealed against the judgment of the Madhya Pradesh High Court, which had directed him to pay his divorced wife ₹179 per month, enhancing the paltry sum of ₹25 per month originally granted by the Magistrate. The parties had been married for 43 years before the ill and elderly wife was thrown out of her husband’s residence. For about two years, the husband paid maintenance at the rate of ₹200 per month. When these payments ceased, she petitioned under Section 125 of the Code of Criminal Procedure (CrPC). The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid ₹3,000 as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat period, and then sought to have the petition dismissed on the ground that she had received the amount due to her on divorce under the Muslim law applicable to the parties.

The important feature of the case was that the wife had managed the matrimonial home for more than 40 years, had borne and reared five children, and was incapable of taking up any career or of independently supporting herself at that late stage of her life; remarriage was an impossibility in that case. The husband, a successful Advocate with an approximate income of ₹5,000 per month, provided only ₹200 per month to the divorced wife, who had shared his life for half a century, mothered his five children, and was in desperate need of money to survive.

Arguments

The Petitioner argued that: (a) the rationale of Section 125 CrPC was to offset or meet a situation in which a divorced wife was likely to be led into destitution or vagrancy; Section 125 CrPC was enacted to prevent such a situation, in furtherance of the concept of social justice embodied in Article 21 of the Constitution. (b) The object of Section 125 CrPC being to avoid vagrancy, the remedy thereunder could not be denied to a Muslim woman; otherwise it would amount not only to a violation of equality before the law but also of the equal protection of the laws (Article 14), and an inherent infringement of Article 21 as well as basic human values. (c) The Act was un-Islamic, unconstitutional, and had the potential to suffocate Muslim women while also undermining the secular character that is a basic feature of the Constitution. There was thus no rhyme or reason to deprive Muslim women of the applicability of the provisions of Section 125 CrPC.

Defending the validity of the enactment, it was argued on behalf of the Respondents that: (a) if the legislature, as a matter of policy, wanted to apply Section 125 CrPC to Muslims, it also meant that the same legislature could, by necessary implication, withdraw such an application of the Act and make some other provision in that regard; (b) Parliament could amend Section 125 CrPC so as to exclude its application and apply personal law instead; and (c) the policy of Section 125 CrPC was not to create a right of maintenance dehors the personal law, and it therefore could not stand in the way of the Act.

Judgment

Upholding the validity of the Act, the Supreme Court held as follows:

• A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision, extending beyond the iddat period, must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
• The liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.
• A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed, as provided under Section 4 of the Act, against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman, including her children and parents. If any of the relatives is unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
• The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

For the Common Man

It is unfortunate to note that the Court did not strike down the Act, which purports to exclude Muslim women in particular from the beneficial treatment of Section 125. The legislature, to appease the Muslim gentry, may have passed the Act on political considerations, but the same has rendered an indirect classification of people on the basis of religion, which is against the fundamental aspect of secularism that we have adopted in our Constitution.