‘SC ruling on alimony for Muslim women brings Shah Bano back to life’

Women activists and lawyers have unanimously welcomed the Supreme Court judgement empowering Muslim women with the right to seek maintenance from their husbands after divorce.

In a landmark judgement pronounced on Wednesday (July 10), a bench of justices BV Nagarathna and Augustine George Masih ruled that a Muslim woman can seek maintenance from her husband under Section 125 of the Code of Criminal Procedure (CrPC) which is applicable to all married women irrespective of religion.

Landmark ruling

Asserting that maintenance is not charity but the right of married women, the top court also held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 will not prevail over the above-mentioned law.

The Supreme Court gave the judgement while dismissing a petition by Mohammad Abdul Samad, who had challenged in the apex court the order of the Telangana High Court to pay maintenance to his wife. The high court had refused to interfere with the maintenance order of the family court.

Samad had contended that a divorced Muslim woman cannot seek maintenance under Section 125 of CrPC and has to invoke the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Judgement vindicates Shah Bano: SC lawyer

Mahalakshmi Pavani, senior advocate at Supreme Court and president of Supreme Court Women Lawyers Association, termed the Supreme Court’s judgement a “progressive” and “welcome” step.

She said the judgement has breathed life into the Shah Bano case and after 39 years proved that she had the right to ask for alimony even though a special law was formulated to deny Muslim women the right to maintenance.

In the Mohd. Ahmad Khan v Shah Bano Begum case, the Supreme Court had granted alimony to Bano after she sought maintenance from her divorced husband. As the issue became controversial and clashed with Islamic laws, the Congress government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. This diluted the Supreme Court’s judgement, limiting the period of receiving alimony for Muslim women to mere 90 days (known as the period of iddat in Islamic law).

Pavani says Samad, a resident of Telangana, had invoked the law to challenge the family court’s ruling to give his wife a maintenance amount of ₹10,000, arguing that she is not entitled to it.

But the Supreme Court in its latest ruling said that the Act is only restricted to maintenance during iddat and applies only to married women. But under Section 125 of CrPc any woman can claim maintenance, whether she is a Muslim, Christian or Hindu.

Daniela Latifi v Union of India judgement

Pavani says the verdict also challenges the 2001 Daniela Latifi v Union of India judgement, which had upheld the 1986 Act. At that time, the Supreme Court upheld the Muslim Women (Protection of Rights on Divorce) Act, 1986 but said the husband must provide for maintenance beyond the iddat period as well.

“To me, this judgement brings Shah Bano back to life and resurrects her. After 39 years, the Supreme Court has said that she had every right to ask for maintenance. It is a right step for the betterment of women. I believe women cannot be discriminated against on the basis of caste and gender. Why are Muslim women subjected to this kind of a law?” asks Pavani.

What was the Shah Bano case?

Bano, a 62-year-old woman from Madhya Pradesh, who was divorced by her husband in 1978, filed a case for maintenance under Section 125 of the CrPC. The Supreme Court ruled in her favor and upheld the right to alimony for Muslim women. When the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, it effectively invalidated the decision in the Shah Bano case, denying her maintenance.

Section 3(1) of the Act stated that divorced Muslim women are entitled to reasonable and fair maintenance during the iddat period and denied them subsequent and further maintenance from their former husbands.

This was challenged in 2001 by Danial Latifi, the counsel of Bano. Latifi argued that this Muslim Women (Protection of Rights on Divorce) Act, 1986, infringes on Article 21 of the Constitution. The act violates Articles 14 and 15 and denies divorced Muslim women the same maintenance benefits as other divorced women under Section 125 of the CrPC, Latifi said.

But the Supreme Court had upheld the constitutionality of the Act at that time.

SC order brings gender equality, says NCW chief

Rekha Sharma, the chief of the National Commission for Women (NCW), has also welcomed the Supreme Court’s latest judgement on the matter, stating that the decision is a significant step towards ensuring gender equality and justice for all women, regardless of their religion. “I wholeheartedly welcome the Supreme Court’s landmark ruling that affirms the right of Muslim women to seek maintenance under Section 125 of the CrPC. This decision is a significant step towards ensuring gender equality and justice for all women, regardless of their religion,” she said.

“It reinforces the principle that no woman should be left without support and protection under the law. The NCW remains committed to advocating for the rights of women and ensuring that justice prevails for every woman in India," Sharma said.