Shah Bano’s Ghost

The Supreme Court’s recent judgment in Abdul Samad has been in the news, I suspect partly because it again provides an opportunity to media commentators to speak about how Muslim women need to be saved from their personal laws.

The SC has held that there are equivalent rights to maintenance available under the ‘secular provision’ of Section 125 of the Criminal Procedure Code (CrPC) of 1973 (Section 125), and the ‘personal law provision’ enacted in Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Although the two provisions exist in parallel and distinct domains, either is available to Muslim women. The existence of personal law rights to maintenance does not debar Muslim women from also invoking the same right under Section 125 CrPC.

On cue, the All-India Muslim Personal Law Board (AIMPLB) passed a resolution disapproving the judgment.

The facts of the case involve a Muslim husband who unilaterally divorced his wife and paid her Rs 15,000 towards maintenance for the period of Iddat alone. The Iddat period comprises three months following a divorce when a divorced wife may not remarry, and was instituted to remove any potential doubts about paternity, etc. The severance between the former spouses is complete after Iddat.

Mr. Abdul Samad’s self-assessed maintenance amount for his ex-wife was Rs 5000 per month, for three months. The wife invoked Section 125 and claimed proper maintenance beyond the Iddat period. The family court granted her an interim monthly maintenance of Rs. 20, 000, while the case remained pending for final adjudication. The husband appealed to the High Court (HC), which exercised its discretion and reduced the interim maintenance amount by half still acting under the jurisdiction of the secular provision of Section 125. Very often the maintenance amounts granted by courts, both under secular and personal law provisions are equally arbitrary. There is no objective method of assessing fair maintenance.

Mr. Abdul Samad didn’t give up even after the HC reduced maintenance payable to Rs 10,000. He appealed before the SC, claiming that his ex-wife’s rights were exclusively governed by the 1986 Act, which gave Muslim women “more beneficial and efficacious remedies” than the general provision in the CrPC.

His is a peculiar argument: that the wife has a better right to maintenance under the 1986 Act, than in the CrPC and therefore she must invoke the more efficacious remedy under the former. Also, that the CrPC option is closed to her, since the 1986 Act specifically covers the field. On the face of it, the husband is not denying the wife’s right to enhanced or fair maintenance even beyond the period of Iddat: he only suggests that the CrPC application was not the correct one.

Lawyers and courts spend a significant amount of time first ironing out the most efficacious remedy, sometimes even at the cost of the merits of the case. Here too the final ruling is on the best remedy: both secular and personal law remedies are available to Muslim women, and neither is excluded. However, the fact that the interim maintenance amount was halved receives less attention. The SC summarily confirmed the HC order, which fixed interim maintenance at Rs 10,000. It seems that both sets of remedies—‘the personal’ and ‘the secular’—are equally subjective.

How is the 1986 Act more beneficial?

Section 125 was first enacted to prevent vagrancy, and in turn to curb social nuisance, crime and disorder. This is unlike the Domestic Violence Act (2005) (DVA), where the objective is to create equitable conditions. DVA mentions comprehensive “monetary relief”, including computation of loss of earnings, and an adequate and reasonable allowance consistent with the woman’s standard of living.

Section 125, with its colonial origins, predates welfarist, women-centric legislation. It only aims to prevent destitution and vagrancy, so that the destitute are not ‘drawn to immorality or crime’. Although, Justice Nagarathna notes that Section 125 jurisprudence has become more social welfarist, the conditions precedent to grant of maintenance include that the wife prove her inability to maintain herself. The husband must also be shown to have “sufficient means” to maintain her but negligent in doing so. The judgment cites a precedent that the right to maintenance is not absolute and requisite conditions must be determined first. Till 2001, there was a ceiling of Rs 500 on maintenance. Even after the deletion of the ceiling, this section aims to ameliorate basic living standards, not to create financial independence.

The 2019 Muslim Women (Protection of Rights on Marriage) Act, which declares ‘triple talaq’ null and void, gives to Muslim women the right to a “subsistence allowance.” The SC judgment has also held that women upon whom the ‘triple talaq’ was pronounced are not actually divorced since triple talaq has now been held to be null and void. Such women have the option of asking for a subsistence allowance under the 2019 Act, or asking for maintenance for basic upkeep under Section 125. The Court hasn’t noted that such women in purgatory also have the option of invoking the DVA and claim more expansive relief.

The SC’s judgment also notes that it had already recognised Muslim women’s right to ask for maintenance under Section 125, beyond Iddat, in apparent contravention of personal law. Even before Shah Bano (1985,) in Bai Tahera (1979) and in Fuzlunbi (1980,) SC held that all destitute divorcees suffering neglect would be covered by the protection of Section 125. However, it wasn’t until Shah Bano that the idea of the husband’s continuing liability beyond Iddat first came to be seen as an attack on personal law. A good reason could be that Shah Bano (unlike the judgments before it) suggested that Muslim personal law was a deterrent to national integration since its followers were “loyal to laws of conflicting ideologies.” After calling out “laws of conflicting ideologies [on maintenance,]” the judgment confirmed maintenance of a paltry Rs. 179.20 for Shah Bano under Section 125.

Popular perception has always held that the government brought in the Muslim Women (Protection of Rights on Divorce) Act, 1986 to appease conservative Muslims protesting Shah Bano’s dicta that extended the ex-husbands’ liability towards their destitute ex-wives beyond Iddat. The 1986 Act had allegedly reversed this judgment through a legislative process, but to the contrary, the statute does not bar Muslim women from invoking Section 125. SC in the present case also relied on this fact to conclude that the option is not excluded for Muslim women.

Section 3 of the 1986 Act states that “a divorced [Muslim] woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period.” In 2001, a five-judge SC bench interpreted “reasonable and fair provision” in Daniyal Latifi to mean financial provision compatible with a lifestyle to which the wife is accustomed, and which would extend beyond Iddat, since ‘provision’ implies for the lifetime. Further, since the statute says that such provision has to be first made (or settled), and then ‘paid within the Iddat period’, the court most creatively interpreted it to mean that while the provision would account for the wife’s future needs, it will have to be paid as a lumpsum within 90 days. Thus the 1986 statute and the interpretation in Daniyal Latifi separated calculation of the holistic provision from its actual payment (to respect that no payments were proper post-severance of relationship). This decision has become final and nobody seems to have had a problem in principle.

The recent judgment also notes that “remarriage” does not nullify a women’s claim under the 1986 Act. Nor does the woman need to show inability to fend for herself.

The Act gives women a right to approach the magistrate’s court if a reasonable and fair provision is not made, and for magistrates to decide the case within 30 days. Section 125, on the other hand, states interim maintenance must be fixed within 60 days, even if the main case is pending.

The more interesting questions

A Magistrate has similar powers while acting under both Section 125 and the 1986 Act. In fact, magistrates’ powers are more expansive under the latter where quantum of ‘provision’ factors in the future.

The issue before the SC was quite contextual: given the facts, would it be more beneficial for the woman to proceed under Section 125? If she invoked her rights under the 1986 Act, she might get a more reasonable provision, but she loses a month. The court relied on previous judgments and ruled that the wife had the option to proceed under Section 125. The judgment itself cites precedents, which makes both the commentators’ excitement and the AIMPLB’s sullenness misplaced.

If each such judgment were not framed as a match between ‘secular’ and ‘personal law’ (now increasingly the UCC and Muslim personal law), there are other questions to be asked:

There are several options available to all women, but how do women exercise their options? How do they choose between invoking rights under the DVA, and the 1986 Act? The SC also makes a case for financial remuneration in recognition of unpaid household labour. It would be important then to explore why Muslim women choose to invoke Section 125 rights (which are limited) over the more ‘reasonable and fair provision’ granted in the 1986 Act. Is the choice also partly based on the general disdain towards Muslim personal law? Do magistrates respond differently to claims under different provisions?

If we hope to streamline and harmonise the various options, we would need a better understanding of these questions.

(Views expressed are personal)

Shahrukh Alam practices law at the Supreme Court of India