This article has been written by Sahil Mehta.

Introduction

“A common civil code will help a cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”

– Justice YV Chandrachud 

Section 125 of the Criminal Procedure Code, 1973 (hereinafter, CrPC) is one of the most discussed sections of the CrPC. It provides that a person having sufficient means cannot deny maintenance of wife, children, and parents who are unable to maintain themselves. For the purpose of this Section, “wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married”. A magistrate can order a husband to provide a monthly allowance as maintenance to his wife.

The principal object of Section 125 is to achieve social welfare and prevent vagrancy and destitution of the wife. In Mohd Ahmed Khan v Shah Bano Begum (hereinafter, Shah Bano), the Supreme Court held that Section 125 of the CrPC is a secular provision and applies to Muslim women also. It held that a Muslim husband is liable to maintain her wife if she is unable to maintain herself even after the iddat period is over. The same judgment was nullified by Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter, the Act). However, this section was subsequently upheld by the Supreme Court in Danial Latifi v Union of India. (hereinafter, Danial Latifi)

In this article, the author critically analyses the judgment of Danial Latifi. He argues how the judgment was inconsistent with the ‘Secular’ reasoning provided in Shah Bano. Further, he analyses the problem of maintenance in the Act and the prevailing circumstances in which the Act was passed. However, before analyzing it, it is necessary to understand the position before Shah Bano, the judgment of Shah Bano and its aftermath effects.

Glance at history

Pre Shah Bano Position

Before the judgment of Shah Bano, it was considered that the Muslim husband has to pay the maintenance only till the iddat period. The right of maintenance of Muslim women ends after the iddat period. Iddat is a time-period in Muslim law that a woman has to pass after the divorce or death of the husband before she can lawfully marry again. It generally ranges from three to four months in case of divorce and husband’s death. Further, it was considered that Section 125 of CrPC does not apply to Muslims, who are governed by Muslim Personal Law, Shariat. 

Shah Bano Judgment

In Shah Bano, the issue was whether Section 125 applies to Muslims or not. Whether or not a Muslim woman, who is unable to maintain herself, can demand maintenance from her husband after the iddat period. SC held that Section 125 is secular in nature and not associated with any personal law. It was enacted for quick maintenance and to prevent destitution and vagrancy. Justice Chandrachud held that personal law (Shariat) could not override the constitutionally framed law (Section 125). Therefore, a Muslim woman, who is unable to maintain herself, can demand maintenance from her husband even after the iddat period. The husband is legally bound under Section 125 of the CrPC to pay maintenance. An obiter dictum also chastised the government for its failure to promulgate a Uniform Civil Code in the country.

Post Shah Bano Position: Protest

The judgment in the Shah Bano was not accepted with open arms by the Muslim leaders. Muslims saw the judgment as a threat to their identity. They considered the judgment against their personal laws. There were already two issues that had caused unrest among the Muslim community. One was the Ram Janmabhoomi-Babri Masjid controversy, and other was the admission of the petition in the Calcutta HC seeking a ban on the Quran as it preaches violence.   The judgment in Shah Bano added fuel to the fire.

Muslim Women (Protection Of Rights On Divorce) Act, 1986

The events mentioned earlier caused a massive fury among the Muslim community. The threat was so significant that it had the potential to shake the whole politics. A minister had also said that it could have far-reaching complications on Rajiv Gandhi’s government. Therefore, to secure his chair and gain popularity among the Muslim community, his government has passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Act nullified the effect of Shah Bano’s judgment. 

Section 3 of the Act provides for the provision and maintenance to the Muslim woman given at a time of divorce. The said provision obligates the husband for “a reasonable and fair provision and maintenance to be made and paid within the iddat period.” The term reasonable and fair provision and maintenance signify that the maintenance can vary on a case-to-case basis and was open to judicial interpretation. The Act restricted the right of maintenance to Muslim women ‘by her husband’ until the iddat period only. 

If the woman has not remarried after the iddat period and cannot maintain herself, she cannot seek maintenance from her former husband. Under Section 4 of the Act, the Magistrate is only authorized to order her relative, who would inherit her property, to pay reasonable and fair maintenance to the woman. If she has no relatives or does not have a relative who has the capacity to pay, the Magistrate may order the State Wakf Board to pay the required maintenance to the woman.

Danial Latifi V Union Of India

The constitutionality of the Act was challenged in Danial Latifi. It was contended by the petitioners that the Act was less beneficial than Sections 125-128 of the CrPC. Further, it unreasonably discriminated against Muslim divorced woman and violated their rights under Articles 14, 15, and 21 of the Constitution. Also, it sought to nullify the SC’s decision in Shah Bano.

However, the SC upheld the constitutional validity of the Act. It held that there is no discrimination when the state has made a specific provision for a particular community that is equally or more beneficial than the general law. The Act does not nullify or go against the ratio decidendi of the Shah Bano but merely codifies it.

Disputable Issues

What about secularism?

The purpose of the inclusion of Section 125 was to prevent destitution and provide quick maintenance to women. The section is secular in nature and protects all women in general from vagrancy. Further, the SC in Shah Bano held that Section 125 could be used by any divorced woman against her husband for maintenance. It also chastised the government for delay in implementing the uniform civil code. The broad interpretation given to Section 125 could be regarded as a move towards achieving Article 44, Uniform Civil Code (UCC) which is a Directive Principle of State Policy (DPSP).  

However, the Act put a restraint on the way towards UCC. Further, the court in Danial Latifi accepted its validity. The court did not adhere to the rulings in Shah Bano. From time to time, courts in India held the need for UCC. The drafters of the Constitution hoped that the government would try to implement UCC in the whole country and thus included it in the Directive Principles of the State Policy. Further, the courts in various instances held Goa as the “shining example” of UCC. 

However, there are no fruitful attempts. Section 125 of the CrPC could have been one; however, it was overthrown by the Act. Instead of invalidating the Act due to its deviation from the secular nature, the court upheld its validity. The author argues that the court in Danial Latifi should have viewed the Act in contradiction to the expectations of the drafters of the constitution and secularism, which forms a part of the basic structure doctrine. Consequently, it should have been declared unconstitutional, violating the basic structure doctrine.   

Further, the court has failed to answer the necessity of the Act. Having a secular provision should be enough. All communities are similarly treated under Section 125. However, the court did not clarify the need for the new provision, mainly for Muslim divorced women.  

Why Undue Burden On Relatives And Wakf Board?

Section 3 of the Act provides “a reasonable and fair provision and maintenance to be made and paid within the iddat period.” Section 4(1) of the Act authorizes the Magistrate to order the woman’s relatives to pay her maintenance. Section 4(2) of the Act says if relatives are not capable enough, the Magistrate can order the State Wakf Board to pay maintenance to the woman.

The Court did not answer why the relatives, who are strangers to the matrimonial relations, should be obliged to pay the maintenance. It cannot be said that those relatives would inherit the property of the woman. There are high chances that a woman does not have any property. In such cases, relatives would not take the burden of maintenance willingly. Then it would be unjustified on the part of the magistrate to order relatives for the maintenance in such a case. The Bangladesh High Court in Hezfur Rahman v Shamsun Nahar Begum held that ‘it is the husband’ who is liable to maintain his divorced wife beyond the iddat period. She should be reasonably maintained by her husband for an indefinite term or till she re-marries again. A woman sacrifices her career, her desires, and her sources of income in light of her ‘stridharma’ ‘for her husband and not for relatives’. She leaves behind her property and loses earning opportunities ‘by being married’. The position of wife in marriage is held vulnerable by virtue of being married. Therefore, for the forgone opportunities of the wife and the work during her marriage, the husband should be held obliged to adequately compensate her and not her relatives. 

In Tamil Nadu State Wakf Board v Syed Fatima Nochi, it was contended by the Wakf Board that the ministry has not asked to create a separate fund for maintenance to the Muslim divorced women. Further, no specific guidelines were issued in this regard. However, the court compelled the Wakf board to pay the requisite maintenance. Fortunately, the Wakf board had the required amount to pay the maintenance in the case mentioned above. What if the Wakf board did not have the required amount?  Can it be compelled to pay the maintenance in that case also? It would not be right to order a board that has no relation to the matrimonial arrangement between a husband and wife. 

Cannot Ignore Prevailing Circumstances And History:-

The Court in Danial Latifi held that it could not look upon the legislature’s intention while it frames law. The court said that framing of rules and regulations is the core area of the legislature. 

However, the Court should not overlook the politically motivated objectives of the legislature during the enactment of any legislation. The Court should look at both the history and the intention of the parliamentarians before interpreting any law. A law cannot be interpreted in closed walls without taking into consideration the context in which it was passed. 

The US SC in Village of Arlington Heights v Metropolitan Housing Development Corporation held that “sequence of events leading up to the challenged decisions, the legislative or administrative history and in extraordinary cases, may even summon individual legislators to testify concerning the purpose of the official action.” It is clear that if the circumstances are required, the court should look to the context in which the law was passed.

There were numerous instances of violence after the Shah Bano judgment. Further, some ministers in Rajiv Gandhi government directly said that something needs to be done to appease the Muslim community to secure their majority mandate. Therefore, the court could have looked at the intention of the parliament behind the enactment of the Act in Danial Latifi and could judge accordingly. 

Conclusion

The author has concluded that a secular step was taken while introducing Section 125 in the CrPC. It grants maintenance rights to all women, irrespective of their religion. The court in Shah Bano affirmed the same. However, the legislature brought the Act to nullify the judgment in Shah Bano and the same was confirmed by the court in Danial Latifi. 

However, the court has overlooked specific contentious issues in Danial Latifi. It has deviated itself from the ratio given in Shah Bano. While upholding the validity of the Act, the court failed to consider why Section 125, which is a step towards achieving UCC in the country, should not have primacy over any other personal law. Further, it has not justified why the relatives and Wakf board should be obliged to maintain women and not her husband. The court has also overlooked the intention of the parliament behind the Act and prevailing circumstances going on in the country at that time. If the court would have considered the above contentions, the judgment could have been different. 

Bibliography

Books

1. Mulla, Principles of Mohmmaden Law (20^th edn, Lexis Nexis 2014)
2. Shukla, V.N. & Singh, M.P, Constitution of India (13^th edn, Eastern Book Company 2017)
3. The Constitution of India 1950

Articles

and Society’ (2019) 12(2) NUJS Law Review 217

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Online Sources

1. Gupta S, Badhwar I and Ahmed F, ‘Shah Bano judgement renders Muslims a troubled community, torn by an internal rift’ (India Today, 16 January 2014) <https://www.indiatoday.in/magazine/cover-story/story/19860131-shah-bano-judgement-renders-muslims-a-troubled-community-torn-by-an-internal-rift-800516-1986-01-31> accessed 9 August 2021
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Legislations

1. Code of Criminal Procedure Act 1973
2. Muslim Women Protection of Right on Divorce Act 1986

Cases

1. Danial Latifi & Anr vs Union Of India (2001) 7 SCC 740
2. Hezfur Rahman v Shamsun Nahar Begum  47 DLR (1995) 54
3. Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556
4. Tamil Nadu State Wakf Board v Syed Fatima Nochi  AIR 1995 Mad 88
5. Village of Arlington Heights v Metropolitan Housing Development Corporation 429 U.S. 252 (1977)
6. Vimala v Veeraswamy (1991) 2 SCC 375

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