What is a divorced Muslim woman’s right to maintenance under the CrPC?

While the ruling follows a 22-year-old landmark precedent, it sparked a discussion on the chequered legal and political history of the right to maintenance of Muslim women.

The present case

Petitioner Mohd Adbul Samad challenged a 2017 family court order directing him to pay maintenance of Rs 20,000 per month to his former wife. The Telangana High Court, on appeal, refused to set aside the order of the family court.

Section 125 CrPC places an obligation on “any person having sufficient means” to maintain “his wife” or “his legitimate or illegitimate minor child” if they are unable to maintain themselves — typically through monetary support at regular intervals. The explanation in the section clarifies that the word “wife” also includes a divorced woman who has not re-married.

Justice Nagarathna, in her opinion, said that Section 125 CrPC is “embedded in the text, structure and philosophy of the Constitution” as a social justice measure. “The remedy of maintenance is a critical source of succour for the destitute, the deserted and the deprived sections of women… It is an instantiation of the constitutional philosophy of social justice that seeks to liberate the Indian wife including a divorced woman from the shackles of gender-based discrimination, disadvantage and deprivation,” Justice Nagarathna wrote.

This, she said, is “aligned” with the power to create special provisions for women under Article 15(3) of the Constitution, and the obligation on the State under Article 39(e) to ensure “that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”.

The ruling reiterated that maintenance under Section 125 CrPC exists “in addition” to the provisions for maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRD Act), not “against” it.

“…While enacting the 1986 Act, Parliament did not simultaneously or at anytime thereafter create any bar for a divorced Muslim woman from claiming maintenance under Section 125 of the CrPC,” Justice Nagarathna wrote.

This position was first taken in the landmark 2001 ruling in Danial Latifi & Anr v. Union of India.

Shah Bano decision

In 1978, a woman named Shah Bano Begum filed a petition seeking maintenance from her husband under Section 125 for herself and her five children. Divorcing Shah Bano via ‘irrevocable talaq’ later that same year, her former husband, Mohammed Ahmad Khan, argued that he is only required to provide maintenance during the iddat period following divorce — three months under ordinary circumstances during which she cannot marry another man — according to Muslim personal law.

After Shah Bano’s plea was granted by Madhya Pradesh High Court in 1980, the matter reached the Supreme Court. The All Indian Muslim Personal Law Board argued that the court was bound to apply Muslim personal law as per The Muslim Personal Law (Shariat) Application Act, 1937.

A five-judge Constitution Bench upheld the High Court’s decision. Then Chief Justice of India Y V Chandrachud held that provisions such as Section 125 CrPC “cut across the barriers of religion”, and “whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant”. The court also held that the divorced wife was entitled to maintenance under Section 125 even after the iddat period “if she is unable to maintain herself”.

The government of Prime Minister Rajiv Gandhi then enacted the MWPRD Act, which effectively overturned the Shah Bano verdict. Under the Act, the obligation to pay maintenance after the iddat period was placed on the relatives or children of the divorced wife and, in their absence, on the State Wakf Board.

Challenge to 1986 Act

Soon after the MWPRD Act was enacted, Shah Bano’s lawyer, Danial Latifi Nafess Ahmad Siddiqui, challenged its constitutionality before the Supreme Court.

He argued that Section 125 is meant to protect women of all religions from “destitution or vagrancy”, and that the MWPRD Act discriminates against Muslim women, violating their right to equality (Article 14) and right to life with dignity (Article 21).

The Centre argued that personal law is a legitimate basis for discrimination and does not violate the right to equality.

The All India Muslim Personal Law Board argued that the Act takes care of Muslim women and prevents “vagrancy” while being in tune with Muslim personal law, which only places an obligation for maintenance on the husband during the iddat period.

In an endeavour to uphold the constitutionality of the law while securing maintenance for a divorced Muslim woman beyond the iddat period, the five-judge Constitution Bench in its judgment creatively interpreted Section 3(a) of the MWPRD Act, which requires the former husband to provide “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period”.

The court interpreted this to mean that the husband “is required to contemplate the future needs (of the divorced wife) and make preparatory arrangements in advance for meeting those needs” within the iddat period. In contrast, the actual payment would not be limited to this period and could “extend to the whole life of the divorced wife unless she gets married for a second time”.

As a result, the court held, a Muslim husband is responsible for paying maintenance even beyond the iddat period, and upheld the constitutionality of the MWPRD Act.