'1986 Act, Domestic Violence law more helpful to Muslim women than Section 125'

So, what does the recent judgment of the two-judge bench of Justices BV Nagarathna and George Augustine Mashih mean? What special message does it hold out for destitute Muslim women at large?

Not new or novel

Putting the issue of Muslim women's rights for maintenance into perspective, Shahrukh Alam, a Supreme Court advocate, said the Justice Nagarathna-Masih judgment is a "welcome" one. However, there have been far more “novel and expansive” judgments earlier on the issue, she told The Federal in an exclusive interview.

According to Alam, Muslim women already had the option to file for maintenance under the ‘religion neutral’ section 125 CrPC and this latest judgment is just re-establishing this right.

“It is not new and neither is the judgement saying that it is. The two-judge bench is relying on earlier judgments like Danial Latifi vs Union of India 2001, which is far more equitable for Muslim women and the later 2009 Shabana Bano vs Imran Khan judgment, which clearly reaffirmed that Muslim women have an alternative remedy to Section 125,” said Alam.

Shah Bano judgment

Further, discussing the evolution of law on this particular issue involving the right for maintenance for Muslim women, Alam said: “Sec 125 CrPC is secular and any woman has the right to approach the magistrate. However, this led to a huge controversy after the Shah Bano judgment and certain Muslim organisations felt there was a breach on how thecourt in Shah Bano interpreted the Muslim Personal Law, and the Muslim Women (Protection of Rights on Divorce) Act, 1986 came about."

The 1986 Act had ruled that a “reasonable provision” for the period (90 days) of iddat (waiting period after a death or divorce) should be provided for Muslim women and beyond that if the woman is unable to look after herself financially, her relatives or the Waqf Board will provide for her.

It was then that Shah Bano’s lawyer Daniel Latifi challenged the constitutionality of the Act in 2001, arguing that it is violative of Articles 14 and 15 of the Constitution.

'Not constitutional'

Questioning this special 1986 Act, Latifi had asked: ‘Why should a Muslim woman be barred from approaching a magistrate under 125 CrPc, what is the purpose of this Act? And why should relatives and the Waqf Board be dragged in? The husband should be made liable for her maintenance – to which, the five SC judge bench agreeing with him said that anything that is not beneficial to one part of the population i.e., Muslim women, cannot be constitutional’.

Responding to his plea, this five-judge bench did something “novel” at that time, explained Alam.

“The five-judge bench interpreted “reasonable provision” for the wife under Section 3 (1) A of the 1986 Act to mean "provision" for the future. In fact, providing such that she is able to keep the living standard that she is used to for the remainder of her lifetime. Further, the court decreed that this provision for the future must be paid within the period of Iddat, that is within 90 days, in deference to the argument that Muslim personal law does not allow payments after Iddat. Thus the liability extends to beyond the period of Iddat, but the lumpsum payment has to be made within that period. The Supreme Court was calculating the maintenance for her lifetime so that the former husband could provide her a lifestyle that she is used to and needs to live in the projected period of her lifetime. This was a very progressive judgment.”

Big relief

The judges said that any other interpretation of the 1986 Act would make it discriminatory and unconstitutional. This judgment brought a lot of relief to Muslim women, by making the quantum of relief more expansive and also expeditious. Otherwise, they were struggling for months on end to get maintenance, said Alam.

Again, in 2009, in the Shabana Bano vs Imran Khan judgment, the judges reiterated that Muslim women have the parallel right to proceed under Section 125.

In her recent judgment, Justice Nagarathna too said that while enacting the 1986 Act, Parliament did not create any bar for a divorced Muslim woman from claiming maintenance under Section 125 of the CrPC.

This was what was first said in the landmark 2001 ruling in Danial Latifi & Anr v. Union of India, wrote Justice Nagarathna. 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.

Is Section 125 the answer?

But, is Section 125 the answer for Muslim women? According to Alam, the Domestic Violence Act (DV) which came into existence in 2005 gives more expansive monetary relief.

“There is no controversy over Muslim women approaching the courts under the DV act. Also, it is a one-window system where you can ask for reliefs like a restraining order, protection, maintenance and residence rights. Now most women are opting for the DV Act. So today, in reality, Muslim women have parallel rights under DV Act or their personal laws or under Sec 125,” affirmed Alam.

Audrey D’Mello, a Mumbai-based advocate, too echoed Alam’s view that the Supreme Court has always upheld the right of Muslim women to opt for Section 125.

“It is a misunderstanding that with the 1986 Act, Section 125 was taken away,” said D’Mello. According to her, women in rural areas opt for it since it is a more simple procedure. D'Mello is the Director of Majlis, an NGO working for women and children’s rights through legal representation, advocacy and training and has represented many women under all these laws.

Quick and holistic

D'Mello believes Muslim women today opt more for Domestic Violence Act or the amenable 1986 Act rather than for Section 125. The 2005 Domestic Violence Act, a secular law is more holistic as proceedings are held summarily and women get quick relief, she told The Federal.

"Women across all castes and religions can file under the DV Act, when they need maintenance or protection against domestic violence etc. I don’t understand the fuss over this recent judgment, why everyone gets excited if Muslim women come into the picture,” she said.

Alam too pointed that as lawyers they don’t encourage women to file under Sec 125. "It is better to file under the 1986 Act or DV Act to get more maintenance. Section 125 takes the longest time and typically women don’t get a lot of maintenance," she added.

For Alam, the Justice Nagarathna judgment, in short, is opening avenues for Muslim women, emphasising that nothing is barred. However, it does not take into account the "realities on the ground", she admitted.

Batting for financial security

But what stands out in the Justice Nagarathna-Masih judgment is that besides driving home that maintenance is not a charity but a right, the judge also actively batted for financial security for women.

Legal experts pointed out the judgment gives importance to the "financial sharing of resources" even in a normal marriage. The judge makes a pitch for setting up a financial independence mechanism to share resources like a "joint account". This is largely to give her a sense of dignity if the husband is the sole provider and the wife has been taking care of the home with no resources of her own, said experts.

In that sense, experts argue that it is a "nuanced" judgement and has given thought to the functioning of a family in an Indian set up.

Empowering homemakers

In her 45-page verdict, Justice Nagarathna observed that both 'financial security' as well as 'security of residence' of Indian women have to be protected and enhanced.

In her view, that would truly empower Indian women who are referred to as 'homemakers' and who are the strength and backbone of an Indian family.

"In Indian society, it is an established practice that once a daughter is married, she resides with her husband or his family unless due to exigency of career or such other reason she has to reside elsewhere. In the case of a woman who has an independent source of income, she may be financially endowed and may not be totally dependent on her husband and his family," she said.

Source of income

But what is the fate of a married woman who is often referred to as a "homemaker" and who does not have an independent source of income and is totally dependent for her financial resources on her husband and on his family? she asked.

"Some husbands are not conscious of the fact that the wife who has no independent source of finance is dependent on them not only emotionally but also financially. Such financial empowerment would place such a vulnerable wife in a more secure position in the family," she said.

So, she suggested, Indian married men who are conscious of this aspect must "make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged."

What was the case?

On July 10, a bench of Justices BV Nagarathna and Justice Augustine George Masih pronounced separate but concurring judgments upholding the rights of Muslim women to maintenance under section 125 CrPC, after a Muslim man challenged a Telangana High Court direction to pay ₹10,000 interim maintenance to his former wife. He had contended that the maintenance claim in his case would instead be governed by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act).

The judgment said that relief under Section 125 CrPC is a social security measure that operates independently of any Muslim personal law remedies and rejected his plea.