This article is written by Ambar Chaurasia. This article discusses in detail the background of Iqbal Bano v. State of U.P. (2007), vis a vis Muslim women’s right to proceed under Section 125 of CrPC, despite having a way under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the facts of the case, issues raised, arguments of the parties, the laws involved, and the judgement and analysis of the case.

Introduction 

A seminal decision in Indian jurisprudence, “Iqbal Bano v. State of U.P. (2007)” (hereinafter referred to as this case)’ is a significant precedent that explains the response to the legal question of the relationship between the rights of Muslim women using the personal laws and the state legal system in the secular legal system of the CrPC.  

There are many other things that come up related to the topic; the rights of a Muslim woman and her children’s maintenance, how to communicate Talaq and how important it is.  

This case was significant because it examined whether a Muslim woman is eligible to file for maintenance from her husband under Section 125 of the CrPC, which provides for support to any person unable to make provisions for themselves and who may become destitute by reason of a lack of support. 

Therefore, one of the fundamental values that the Supreme Court was highlighting in its ruling, which maintained that Muslim women are entitled to legal safeguards that are just as fundamental to women in other faith-societies, is equality and non-discrimination. This decision fostered further advancement of gender justice in relation to family law and showed once again how much commitment the judiciary has to the performance of their duty of ensuring that everyone enjoys his/her rights within the law despite their religious backgrounds.

Details of the case

Name: Iqbal Bano V. State of Uttar Pradesh & Anr.

Citation: (2007), 6 SCC 785

Date of Judgement: 05.06.2007

Bench: Honourable Mr. Justice DR. Arijit Pasayat and D.K. Jain, JJ.

Background of Iqbal Bano vs. State of U.P. (2007) 

The whole controversy related to the right of maintenance of a Muslim woman started from the enactment of The Muslim Women (Protection of Rights On Divorce) Act, 1986 (hereinafter referred to as the 1986 Act), which was enacted by the legislation and by then ruling government due to pressurisation of Islamist group after Mohd. Ahmed Khan v. Shah Bano Begum and Ors (1985) (hereinafter referred to as the Shah Bano case) in which the Hon’ble Supreme Court for the first time held that Section 125 Criminal Procedure Code, 1973 (hereinafter referred to as CrPC) is a secular law and it applies to women of all religion and if a conflict is found to be there between Section 125 CrPC and Muslim personal law, the provision of CrPC will prevail. 

The Apex Court held that the aim of enacting Section 125 CrPC is to provide quick and summary remedies to a class of persons who are unable to maintain themselves. Section 125 is truly secular in nature; the liability imposed by Section 125 CrPC is founded upon the individual obligation to society to prevent vagrancy and destitution of woman

The Apex Court also observed that Section 125(1), explanation B, states that the term wife includes a divorced wife too, who has not remarried, irrespective of the religion professed by her. Therefore, the term wife includes a Muslim divorced woman as long as she has not remarried. 

The interpretation of the Honourable Supreme Court backfired and was not welcomed by many sections of Muslims and it became a centre of controversy. Many sections of Muslims believed it was an attack on their religious freedom, so the protest was taken to the streets and the Judgement was considered an encroachment on Muslim personal Law.

In this case, Shah Bano, a 62-year-old Muslim woman, approached the court to grant her maintenance from her divorced husband, Mohammed Ahmad Khan. They both got married in 1932 and got divorced by irrevocable Talaq in November 1977.

The Petitioner approached the court to grant her and her children maintenance under Section 125 CrPC and contended that the provision puts a legal obligation on a man to provide maintenance to his wife even after divorce if she is not able to maintain herself.

On the other hand, the respondent took his stand via Muslim Personal Law and contended that it is an express principle under Muslim law that a man is only obliged to maintain her wife for the Iddat period after granting her divorce. This contention was also supported by the All India Muslim Personal Law Board, which contended that the courts are bound in the matter of maintenance, divorce, and other family issues to give decisions as per Shariat and any interference will amount to  a violation of The Muslim Personal Law (Shariat) Application Act, 1937. 

The decision of the Apex Court sparked controversy and the government elected in 1984 passed the 1986 Act  with a view to nullifying the Supreme Court’s Judgement in the Shah Bano Case. The “statement, objects and reasons” part of the act stated that “the Shah Bano decision had led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife and hence an opportunity was therefore taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.”

As per the new enactment, a woman who is unable to maintain herself after the expiry of the Iddat period cannot ask for maintenance from her husband; instead, the magistrate can direct the Waqf Board to provide the aggrieved woman with maintenance for her and her children. The validity of the 1986 Act was challenged by the lawyer, i.e., Daniel Latifi.

In Daniel Latifi v. Union of India (2001) (hereinafter referred to as Daniel Latifi case), a five-judge bench of the Supreme Court upheld the 1986 Act’s constitutionality and noted that, despite the act’s apparent intent to grant Muslim husbands the freedom to withhold maintenance payments from their divorced wives following their separation and Iddat period.

A close examination of the 1986 Act’s provisions reveals that divorced women are entitled to a fair and reasonable maintenance allowance. under Section 3(1)(a) of the 1986 Act. 

The parliament seems to intend that the divorced woman get sufficient means of livelihood after divorce. Now, after upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, many questions arise, like when a Muslim woman can file a petition under Section 125 CrPC and when it is to be filed under Section 3 of the 1986 Act. A few of them were answered by the apex court in this case.

Facts of Iqbal Bano vs. State of U.P. (2007) 

• The appellant filed a petition under Section 125 CrPC on February 21, 1992, claiming a maintenance amount of Rs 500 per month from respondent no. 2. The appellant and respondent no. 2 were married in the year 1959 and a son was born out of wedlock who died in the year 1991. The appellant and the respondent were already living separately and after the death of their son, respondent no. 2 stopped visiting the appellant and stopped paying any money for her sustenance; hence, the appellant approached the Court of Judicial Magistrate. 
• The Respondent stated in his written statement that he had already divorced the appellant a long time ago by uttering the word “Talaq” three times, and he had also paid her Mehr. He also contended that, as per Muslim personal law, a husband is not obliged to maintain his wife after the expiry of the Iddat period; hence, the appellant’s claim is not maintainable. 
• However, the contention of respondent no. 2 was rejected by the trial court and the appellant was granted Rs 450 per month as maintenance. The said order was challenged in revision before the learned Additional Sessions Judge, and the revision petition was allowed. 
• The first revisional court further added that the Mehr having been paid and the Iddat period being over, the appellant’s and respondent’s marriages stand annulled and the appellant will be considered divorced. The appellant approached the Allahabad High Court against the revisional order and the writ petition was dismissed summarily; hence, the appellant went to the Hon’ble Supreme Court.

Issues raised 

• Whether a married Muslim woman is entitled to file a petition under Section 125 of CrPC for maintenance?
• Whether a mere plea in a written statement by the husband and the communication about the same through supplying a copy of such written statement be upheld as talaq?
• Whether a magistrate is empowered to treat an application under Section 125 CrPc as an application under Section 3(2) of the 1986 Act?
• Whether the liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, to pay maintenance is confined to the iddat period?

Arguments of the parties

Petitioners 

The petitioner, Iqbal Bano’s counsel, argued that the revisional court was erroneous in stating that a petition by a married Muslim woman is not maintainable under Section 125 CrPC and a married Muslim woman is supposed to file for maintenance under the 1986 Act and not under the provisions of CrPC. As the 1986 Act was enacted for Muslim divorce women and not married Muslim women, and the provision of CrPC being a secular law, it is not barred for a Muslim married woman to file for maintenance under the provision of CrPC.

The petitioner further contended that the observation of the revisional court that the mention of divorce given by pronouncement 30 years ago in the written statement will amount to divorce is also erroneous.

The petitioner further contended that mere mentioning in the written statement about pronouncing talaq that was pronounced 30 years ago cannot amount to divorce. 

The petitioner also challenged the manner in which the High Court dismissed the revision petition.

Mr. S.W.A. Qadri, learned counsel for the state of Uttar Pradesh, also mentioned several decisions that strengthened the contentions of the appellant.

Respondent  

However, the counsel for the respondent supported the decision of the High Court and called for no interference.

Judgement of Iqbal Bano vs. State of U.P. (2007)

• Trial Court’s verdict

The trial court, while granting maintenance of Rs 450 to the petitioner, rejected the contentions of respondent no. 2 and stated that there was no evidence to substantiate the plea of divorce; hence, the marriage between the appellant and respondent no. 2 cannot be held to be annulled and respondent no. 2 is liable to maintain the appellant.

• Session courts verdict

The learned Additional District and Session Judge allowed the petition by the respondent and held that a maintenance petition under Section 125 CrPC is not maintainable after the enactment of the 1986 Act and a Muslim woman must file an application under Section 3 of the 1986 Act.

The Session Court further opined that the divorce by way of pronouncement 30 years ago and mention of the same in the written statement would amount to a valid divorce. The order of the Magistrate was set aside by the Session Court.

• High court’s verdict

The High Court dismissed the writ petition filed by the appellant summarily, upheld the order passed by the Session Court, and held that there is no illegality in the Sessions Court order, hence it is not liable to be set aside and dismissed the petition.

• Supreme Court’s verdict

The Hon’ble Supreme Court categorically rejected the view of the additional session judge, i.e., the first revisional court, that a married Muslim woman cannot file a petition under Section 125 CrPC.

Further, while citing a judgement in Shamim Ara v. State of U.P. & ANR (2002) of the Apex Court, in which the Court rejected the view of the Session Court that mentioning the pronouncement of talaq 30 years ago in the written statement will amount to divorce. 

As it was held by the Apex Court in the case of Shamim Ara, for a Talaq to be effective, it has to be pronounced properly, and by “pronounced properly,” the court meant that it must be uttered formally and rhetorically, and a mere mention in the written statement of pronouncing talaq sometime in the past cannot validate the talaq, and the pronouncement must be proved, and a plea of talaq being pronounced on a previous date and delivery of the same to the wife by such a plea cannot validate talaq.

The Apex Court also found the conclusion regarding payment of Mehr till the expiry of the Iddat period irrelevant while citing the Daniel Latifi case), in which the validity of the 1986 Act was challenged. In this case, the Apex Court held the following points :

• According to the Court, the 1986 Act was created with the intention that the divorced woman would have a sufficient means of subsistence after the divorce. The word “Provision” in Section 3(1)(a) denotes that something is provided in advance for meeting needs at the time of divorce, and taking the two together will imply that the husband is required to take the wife’s future needs into consideration. These needs may include housing, food, clothing, and other necessities.
• The Supreme Court also opined that the expression “within” in Section 3(1)(a) of the 1986 Act should be read as “on or before” and not as “during or for.”. Therefore, it would imply that the husband must make and give the wife maintenance by the end of the Iddat term or before. 
• Nonetheless, the parliament has made no mention of the reasonable and equitable clause being restricted to the Iddat term and not beyond. If the divorced wife doesn’t get married again, it will apply to her in its entirety. 
• Section 3 focuses on the deadline for concluding an arrangement for payment of such provision and maintenance, i.e., during the Iddat period, rather than the length of time that any such provision or maintenance should last.

The Apex Court further opined that the proceedings under Section 125 CrPC are civil in nature and that it is open to the Court to treat a petition under Section 125 as a petition under the 1986 Act, considering the beneficial nature of legislation and cited Vijay Kumar Prasad v. State of Bihar (2004).

After considering all the facts and previous cases cited, the Honourable Supreme Court set aside the order of the High Court, remanded the matter for fresh consideration, and directed the High Court to dispose of the matter within six months. 

Rationale behind the judgement 

The principles of equality and non-discrimination firmly established in the Indian Constitution provide the rationale for the ruling in this case. In its decision, the Supreme Court emphasised that these principles must take precedence over customs or regulations that may violate the rights of individuals, especially marginalised groups like women and children.

The Court acknowledged that it would be a breach of Muslim women’s fundamental rights to deny them the ability to claim maintenance under Section 125 of the CrPC based solely on their religious identification. The Court ensured that Muslim women were not denied the same legal safeguards as women from other faith communities by upholding Section 125 CrPC’s applicability to them.

In addition, the ruling sought to address the structural injustices and patriarchal frameworks that were embedded in personal laws, frequently depriving women of their rights and marginalising them. The Court affirmed the concepts of gender equity and equality before the law and contributed to developing a more equitable legal framework by defending the rights of Muslim women to seek maintenance.

Overall, the rationale behind the judgement was grounded in the principles of constitutionalism, gender equality, and social justice, with the aim of ensuring that all individuals, regardless of their religious background, have equal access to legal remedies and protections.

Issue-wise judgement

1. Whether a married Muslim woman is entitled to file a petition under Section 125 of CrPC for maintenance?

The Honourable Supreme Court expressly conferred that the Revisional Court was erroneous in upholding that a Muslim woman is not entitled to file a petition under Section 125 CrPC. 

It categorically opined that the applicability of the 1986 Act is limited to a divorced Muslim woman only and not on a married Muslim woman.

Hence, the issue was decided in the affirmative and it was held that a married Muslim woman is entitled to file a maintenance petition under the provision of CrPC

2. Whether a mere plea in a written statement by the husband and the communication about the same through supplying a copy of such written sufficient can be upheld as talaq?

To answer this issue, the Apex Court referred to the judgement in Shamim Ara Case In this case, the Supreme Court rejected the contention of the respondent that the pronouncement of talaq in 1987 and the communication of the same through his written statement in 1990 would amount to divorce and such a self-serving statement of the respondent cannot be read in evidence as relevant and of any value.

The Apex Court held that the term “Pronounce” means to proclaim, to utter formally, or to utter rhetorically, i.e., the pronouncement must be formal and in such a manner that its immediate communication can be established. 

3. Whether a magistrate is empowered to treat an application under Section 125 CrPc as an application under Section 3(2) of the 1986 Act?

While referring to Vijay Kumar Prasad v. State of Bihar  (2004), the Honourable Supreme Court discussed that the proceedings under Section 125 CrPC are civil in nature, and moreover, a proceeding under this section and an application under the 1986 Act are triable by the same court.

Hence, even if a divorced Muslim woman files an application under Section 125 CrPC, it is open to the Court of Judicial Magistrate to treat such an application under Section 3(2) of the 1986 Act.

4. Whether the liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is confined to the iddat period?

The Supreme Court referred to the case of Daniel Latifi, in which it was held that the expression “within” in Section 3(1)(a) should be read as “on or before” and not as “during or for”; therefore, it would mean that the husband is bound to make and pay maintenance to the wife on or before the expiration of the Iddat period.

However, the parliament has nowhere provided that reasonable and fair provision is limited only to the Iddat period and not beyond it. It would extend to the whole of the divorced wife unless she is remarried.

The emphasis of Section 3 is not on the nature of the duration of any such provision or maintenance but on the time by which an arrangement for payment of such provision and maintenance should be concluded, i.e., within the Iddat period.

Hence, it can be construed that the payment of maintenance by a Muslim man to his wife must be made before the expiry of the Iddat period, but the accumulation of such an amount must be enough for the Muslim woman to sustain herself till such woman remarries or does not, as the case may be.

Analysis of Iqbal Bano vs. State of U.P. (2007) 

1. Background and context 

The central issue, in this case, was whether a divorced Muslim woman could avail themselves of this provision and seek suitable maintenance despite the introduction of the 1986 Act, which is based on four explicit provisions specifying maintenance for a divorced Muslim woman. This was a landmark case in which an interpretation of the provision of Section 125 of the CrPC was made to clarify Muslim women’s rights. Section 125 CrPC does not recognize caste, even though it avowedly seeks to promote secularism by providing maintenance to women, children, and parents who cannot support themselves.

2. Legal Issues

Section 125 of CrPC and it was clear whether the Muslim women could claim to be entitled to maintenance under this section, which is a general law applicable to all the citizens of India or whether they would have to seek it exclusively under their personal laws.

The discussion on the post-divorce or the right of maintenance of a Muslim woman: whether such Muslim women who have rights to maintain as specified under the 1986 Act will be barred from claiming their maintenance under Section 125 CrPC.

Whether denying Muslim women the right before a court of law to claim maintenance under Section 125 CrPC would be a violation of their constitutional rights of equality and anti-discrimination.

3. Supreme Court’s Rationale

The Supreme Court interpreted Section 125 CrPC as non-religious legislation that aimed to prevent desertion and ensure the right to a basic source of sustenance for anyone who needed it, with religious considerations being irrelevant. The Court consequently explained that the section should be interpreted broadly so as to provide help to other people and that its intention was to serve social justice.

The Court also understands the fact that personal laws may be applicable in some areas of family life but no personal law should take precedence at the expense of constitutional rights. The Court stated that it is paramount to ensure that the constitutional principle of equality and non-discrimination supersedes the right to follow personal laws. 

The decision made a very good point that it is critical to advocate for fair and just legal interpretations of the law. The Court asserted that rights should not be infringed just because of the religion that is followed by a woman. Even though the Court upheld that it is a matter that subsisted within personal law and these people cannot be given benefits of Section 125 CrPC, it also made clear that the fundamental right of equal protection of the law, which was guaranteed to each citizen of India, has been vindicated by allowing Muslim women to seek maintenance under Section 125 CrPC.

4. Impact of the Judgment

This case is particularly important as it is one of the first decisions in which Indian courts discuss the reconcilability of Section 125 CrPC with the personal laws of Muslim women, and, as such, it confirms that Section 125 CrPC can indeed be applied to Muslim women. 

The judgement was a progressive move that aimed to encourage gender equality and justice. It emphasised how the judiciary champions the rights of society members based on their backgrounds, for example, women. 

It helped to achieve a balance between the application of Islamic and secular laws and ensured that the Islamic laws did not negate the concepts of equality and non-discrimination as envisaged in the constitution.

Conclusion 

The Supreme Court’s judgement in this case was a landmark decision that reinforced the constitutional principles of equality and non-discrimination. By allowing Muslim women to claim maintenance under Section 125 CrPC, the Court ensured that they were not left destitute due to restrictive interpretations of personal laws. 

This case exemplifies the judiciary’s commitment to upholding the rights of all citizens and promoting a more equitable legal framework for women in India, irrespective of their religion. The judgement answered many other issues and categorically interpreted the law in a manner that served the purpose better. 

This particular case is a very good example of how to construe different laws harmoniously even when there seems to be a light conflict between them and every law of the land should be construed in a manner that serves the ultimate purpose of the grundnorm of the land, i.e., The Constitution of India.  

Frequently Asked Questions (FAQs)

What is the Iddat Period and how is it calculated?

Under Muslim personal law, after the pronouncement of divorce, a Muslim woman has to follow a divorce Iddat period to make the divorce final and effective. Divorce iddat has been defined under Section 2(b) of the 1986 Act. The divorce iddat needs to be followed if the marriage has been consummated, and if the marriage has not been consummated, the wife need not observe the divorce iddat.

As per Section 2(b), the divorce iddat is :

• 3 menstrual courses after the divorce, if the woman is subject to such a cycle.
• 3 lunar months (calculated as per the Hijri calendar, one lunar month equals 29.53 days and 3 lunar months equals 88.5 days ) after the divorce if the woman is not subject to such a cycle.
• If the woman is pregnant, then the period between divorce and birth of the child or termination of pregnancy, whichever is earlier.

What if an application under Section 125 CrPC is filed before the Family Court? Can the Family Court still treat such an application as an application under Section 3 of the 1986 Act?

The said issue was recently discussed by the Honourable Supreme Court in Rana Nahid v. Sahidul Haq Chisti  (2020). The main issue in this case was that even though the validity of the 1986 Act has been upheld, there is no authoritative pronouncement as to whether the family Court would have jurisdiction to entertain an application filed by a Muslim divorced woman under the 1986 Act.

The said case was a 2 Judges Bench and there was a difference of opinion.

As per Justice Bhanumathi’s judgement.

It was held that Section 3 of the 1986 Act is a non-obstante clause with respect to a divorced Muslim woman who shall be entitled to rights enumerated in clauses (a) to (d) of Section 3(1) of the 1986 Act. Section 3 of the 1986 Act starts with the word “Notwithstanding anything contained under any other law.”. Hence, as per Honourable Mr. Justice Bhanumathi, such a non-obstante clause has to be understood reasonably and fairly, and it should not be allowed to demolish or extinguish existing rights unless the legislature’s intention is clear, manifest, and unambiguous.

It was further opined that the Family Court does not have jurisdiction under Section 7 of the Family Courts Act 1984 to entertain an application under Section 3 of the 1986 Act; therefore, the Family Court cannot entertain such an application.

As per Justice Banrjee’s judgement 

According to Justice Banerjee, the Family Courts Act was passed in order to establish the Family Courts and facilitate the resolution of marriage-related conflicts. The Family Courts Act’s statement of purposes and reasons states that many women’s associations have called for the establishment of family courts in order to facilitate conflict resolution and provide socially acceptable outcomes.

The Court also observed that on reading of Section 7(1) read with explanation (f) In accordance with Section 3 of the Act, the Family Courts Act grants the family court the authority and jurisdiction that a District Court or any Subordinate Court may exercise under any current statute to consider and rule on any lawsuit or maintenance proceeding, including an application made in accordance with Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Due to a difference of opinion,. The judgement has been referred to a larger bench and is currently pending before the Honourable Supreme Court.

What is Section 3(1)(a) of the 1986 Act? 

Section 3 clause 1 subclause (a) provides that a Muslim woman is entitled to a reasonable and fair provision and maintenance within the iddat period from her former husband. The word “Provision” under this Section indicates something that is provided in advance for meeting some needs at the time of divorce by the former husbands. In other words, he is required to contemplate future needs and make preparatory arrangements in advance for meeting those needs. Such provisions may include provisions for her residence, food, clothes, etc. 

The Court also observed that Section 3(1) clause (a) provides for reasonable and fair provision and maintenance for his divorced wife within the Iddat period. The emphasis of this section is not on the nature of the duration of any such provision or maintenance but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely within the iddat period.   

What does Section 3(2) of the 1986 Act provide for?

Section 3(2) provides for the remedy in cases where the amount of mahr or dower is due and has not been made or paid or where the property that was supposed to be delivered has not been delivered to a woman on her divorce. That woman or anyone duly authorised on her behalf can file an application before a magistrate to grant her such relief or order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.

References

1. https://www.livelaw.in/pdf_upload/pdf_upload-376665.pdf
2. https://islamqa.org/hanafi/askimam/28865/iddahiddat-period-of-waiting/
3. https://www.scconline.com/blog/post/2022/05/20/if-divorce-is-declared-in-one-go-and-fatwa-is-issued-is-muslim-wife-entitled-to-maintenance-under-s-125-crpc-all-hc-answers/