Muslim Personal Law is in the eye of the storm once again. After the triple talaq debacle, it is the “nafqa” (maintenance to be paid by a Muslim husband to his divorced wife), that has come under the scanner. Although the matter is yet to gather steam, things do not look very favorable for the Muslim community in India as far as their right to practice their own personal laws is concerned.
The Supreme Court of India (a two-judge bench comprising Justice BV Nagarathna and Augustine George Masih) is currently examining whether a divorced Muslim woman can claim maintenance under Section 125 of CrPC from her ex-husband.
The issue arose when a Muslim man (Mohammed Abdul Samad) challenged a Telangana High Court ruling to provide interim maintenance to his ex-wife, arguing that the 1986 Act should govern maintenance instead of Section 125 of the CrPC.
The Shah Bano case
The current case is in some ways linked to the famous Shah Bano case. In 1985, a 62-year-old woman named Shah Bano took legal action to seek alimony from her ex-husband. The Supreme Court ruled in her favor, affirming her right to receive lifelong financial support. However, this decision faced strong opposition from the Indian Muslim community.
All India Muslim Personal Law Board (AIMPLB) launched a campaign for “protecting the Shariah” as they believed the Shah Bano judgment contradicted the teachings of the Quran. This case sparked a heated debate about the extent to which courts should intervene in personal and religious matters.
After a sustained campaign, the Congress government under then Prime Minister Rajiv Gandhi finally agreed to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986, which mandated that husbands must provide alimony to their wives, but only during the 90-day period known as “iddat” following divorce. Iddat is a waiting period prescribed in the Quran for Muslim women (who are divorced or after the death of their husbands) in which they are prohibited from marrying again.
Varied interpretations of the 1986 Act
The Muslim Women Act, 1986 was challenged many times. Nevertheless, the judiciary has reaffirmed its legitimacy thus far. However, it cannot be denied that despite the presence of the Act, there have been varied interpretations by the judiciary that have significantly diluted its spirit.
For example, in the Danial Latifi v. Union of India Case, 2001, the 1986 Act’s constitutional validity was upheld by the Supreme Court, but it also granted Muslim women the right to receive maintenance until they remarry. In 2009, the apex court reaffirmed that divorced Muslim women can claim maintenance under Section 125 of the CrPC, even after the “iddat” period, as long as they do not remarry. This decision reinforced the idea that the CrPC provision applies to everyone, regardless of religion.
The Patna High Court highlighted that divorced Muslim women have the choice to seek maintenance under both Section 125 of the CrPC and the 1986 Act. This interpretation tried to demonstrate that both laws can be applied simultaneously, ensuring that Muslim women are not denied their rights under either provision.
The current case
The ongoing case in the Supreme Court centers around an appeal made by the appellant (Mohammad Abdul Samad). The family court in Telangana had ordered Samad to pay Rs.20,000 a month as maintenance to his ex-wife. This decision was made after his ex-wife had claimed in court that Samad had given her triple talaq.
Samad appealed this decision to the Telangana High Court, which, on December 13, 2023, directed him to pay Rs.10,000 as interim maintenance while stating that there are important questions to be addressed in this matter.
Samad then moved the Supreme Court, arguing that the provisions of the 1986 Act (a special law) should take precedence over Section 125 of the CrPC (a general law) in this case. He claimed that the Family Court, which decided the maintenance under Section 125, did not have jurisdiction because the 1986 Act gives authority to a First Class Magistrate.
The SC appointed a senior advocate, Gaurav Agarwal, as amicus curiae to provide expert views. Agarwal opined that proceedings under Section 125 are valid even after a landmark ruling in 1986. He argued that the 1986 Act, which deals with the rights of divorced Muslim women, should be interpreted to ensure equality as guaranteed by the Constitution.
In essence, the current case revolves around whether the 1986 Act supersedes Section 125 of the CrPC and whether divorced Muslim women are entitled to the same rights as other divorced women, as per constitutional principles. Currently, the apex court has reserved its judgment. However, if it rules against the appellant, it is bound to result in one more incursion and intervention into Muslim Personal Law that will cause irreparable damage to the constitutional rights of the Muslim community in India to practice their personal laws.
The Muslim position
The position of Indian Muslims is very clear. Muslim Personal Law is based on the Quran and Sunnah. No one has any authority to make any changes to it. Muslims cannot permit anyone, including the legislative or judicial branches, to interfere with, modify, or change Shariah Law. The stated position of the AIMPLB is that they are open to reform within the parameters of Shariah. It must be understood that the different byelaws of the Muslim Personal Law cannot be viewed in isolation and they form an organic whole.
Justice and welfare form the cornerstone of Shariah when it comes to dealing with issues related to marriage, divorce, maintenance, and inheritance. The Shariah accords alimony rights, maintenance rights, and inheritance rights that empower Muslim women not just socially but also emotionally and financially.
Muslim women have been accorded great privilege, as they are not responsible for earning their livelihood. Men are awarded the financial responsibility of looking after women. If a woman has no close male relative, she becomes the responsibility of her immediate family or the larger community. The Shariah is designed to make the institution of marriage strong and stable. Any changes in the Shariah will disturb that balance and stability and result in dissonance within society that must be avoided at all costs.