This article has been written by Akanksha Singh. This article is an exhaustive piece of work on the detailed study and analysis of the landmark case of Shamim Ara vs State of U.P. (2002). The article provides a comprehensive learning experience for the readers as it also includes a thorough explanation of the provisions of maintenance, along with other relevant case laws under the Muslim Personal Law in the Indian jurisprudence. 

Introduction 

Shamim Ara v. State of U.P. (2002) is a landmark case with respect to rights of muslim women in India. The case gained attention due to the fact that it raised questions about the fairness of divorce practices within Muslim personal law and prompted discussions about the need for equitable treatment of women in such matters. The court had to examine whether the divorce met the requirements set forth by Islamic law. At the centre of the case is Shamim Ara, a Muslim woman whose marital status was altered when her husband pronounced “Talaq, Talaq, Talaq,” signifying an instantaneous divorce. But Shamim Ara contested the validity of this divorce, arguing that it did not adhere to the proper Islamic procedures. 

Under the Muslim Personal Laws, there are three types of divorce or ‘Talaq’. For Muslims, talaq-e-Ahsan is the preferred method of divorce. It entails making one declaration of talaq when the wife is in her state of purity (tuhr), and then refraining from having sexual intimacy for the duration of the waiting period (iddah), which is usually three lunar months or three menstrual cycles. Reunification by marriage at this time voids the divorce. If not, following the waiting time, the divorce is considered final. Talaq-e-Hasan is another type of divorce that entails three talaq declarations spread out across three consecutive tuhrs, or periods of chastity, in which there is no sexual activity. The divorce becomes official after the third pronouncement if the couple does not get back together throughout the iddah time. Lastly, Talaq-e-Biddah, also referred to as triple talaq, is a type of divorce that occurs when the husband issues the talaq three times in one sitting, either verbally or in writing, or via email, text message, or phone call. Due to the absence of a reconciliation time and common perception as being unjust to the wife, this method of divorce has generated controversy and criticism. In the present case, the respondent husband claimed that the divorce given by him was a triple talaq. 

Download Now

At the same time, this case also raised questions regarding the maintenance of divorced muslim women. Before this article dwells into the analysis of the concerned case and the provisions of maintenance, it is important to understand the concept of maintenance under Muslim personal laws. The notion of maintenance is principally regulated by Quranic injunctions and Hadiths, as interpreted by Islamic jurists and incorporated into legal laws under Muslim personal law in India. In this sense, “Maintenance” refers to the obligatory financial assistance that a husband must give to his wife, children, and dependents. As per Islamic law, the husband has a financial obligation to provide for his wife. This entails giving her everything she needs in terms of clothing, food, housing, and other essentials, within his resources. Even after a divorce, if the ex-wife is unable to support herself, the husband may still be obligated to give her maintenance throughout the iddat period (the waiting time following the divorce) and maybe even beyond. Additionally, Muslim personal law recognises the duty of adult children, in addition to spouses and children, to maintain their parents in the event that they become incapacitated. This is an obligation based on moral and religious principles, and children are expected to make every effort to meet the material needs of their parents. Shamim Ara’s stance symbolised a larger movement towards gender justice within the legal system. Her determination sparked conversations about reforming laws to ensure the protection and empowerment of women. 

Let us now look at the case of Shamim Ara v. State of U.P. (2002) in detail in order to better understand all the legal developments that are involved in this case. 

Details of Shamim Ara vs. State of UP (2002)

  • Name of the Case: Shamim Ara vs State of U.P.
  • Case Number: 465 of 1996
  • Equivalent Citations: AIR 2002 SC 3551
  • Acts involved: Muslim Women (Protection of Rights on Divorce) Act, 1986; Code of Criminal Procedure, 1974 (hereinafter referred to as “Cr.P.C.”)              
  • Important provision: Section 125 of the Cr.P.C. 
  • Court: Supreme Court of India
  • Bench: Justice R.C. Lahoti and Justice P. Venkatarama Reddi. 
  • Petitioner/Appellant: Shamim Ara
  • Respondent: State of U.P.
  • Date of the Judgement: October 01, 2002

Facts of Shamim Ara vs. State of UP (2002) 

In the year 1968, Shamim Ara, the appellant (wife) and Abrar Ahmad, the respondent no. 2 (husband) were married as per the Muslim Shariyat Law. Out of this wedlock, four sons were born. On 12th April 1979, an application was filed by the appellant wife, on behalf of herself and for her two minor children, under Section 125 of the Cr.P.C. alleging chargers of desertion and cruelty by the respondent no. 2 and for seeking maintenance. The learned presiding judge of the family court at Allahabad, however, denied to grant any maintenance to the appellant wife by an order dated 3rd April 1993. The court gave reasoning that since the appellant wife was already divorced by the time she filed this application for maintenance, she was not entitled to any maintenance. 

However, the court allowed maintenance for one of the appellant’s sons who was a minor, as the other son became a major during the pendency of the proceedings. On 5th September 1990, the respondent no. 2 replied with a written statement before the court denying all the allegations made in the application filed by the appellant. Moreover, the respondent no. 2 claimed that he had divorced the appellant wife on 11th July 1987 and the appellant wife and respondent no. 2 had ceased to be spouses since 11th July 1987. This was mentioned by the respondent no. 2 by filing an additional plea. 

Additionally, the respondent no. 2 claimed protection under the Muslim Women (Protection of Rights on Divorce) Act, 1986, with specific reference to provisions of dower (mahr) provided under Section 3 of the Act. Through his statement, he claimed that the appellant wife had been given a house. This house was purchased by the respondent no. 2 and was given to the appellant wife in lieu of dower (mahr) and because of this reason, the appellant wife is not entitled to any maintenance. The respondent no. 2 while appearing before the court in the witness box stated that he had divorced the appellant wife in presence of Mehboob and other four to five persons of the neighbourhood at 11 A.M. on 11th July 1987. 

Further, he stated that he had not been giving any maintenance to the appellant wife and any of the four sons since 1988. There was no justification of arguments by way of evidence or any testimony of witnesses in the favour of divorce being a ‘triple talaq’ given by the respondent no 2. He did not even mention about the divorce to have been a ‘triple talaq’ in the written statement filed by him. The family court at Allahabad accepted the arguments put forth by the respondent no. 2 based on the affidavit filed by him. 

However, in certain cases, the appellant wife was not even a party to the suit in which the husband made the statement saying that he had divorced the wife. Based on such an affidavit by the respondent no. 2, the family court at Allahabad had dismissed the petition filed by the appellant wife for claiming maintenance. Therefore, the appellant wife appealed against the decision of the family court of Allahabad to the High Court. The High Court held that the divorce was rightly completed in the year 1990 when the husband had filed a written statement against the appeal and thus, the appellant wife is entitled to maintenance only for a short duration of time, that is, from 1st January 1988 to 5th December 1990. With regards to this issue of maintenance, a special appeal was filed before the Supreme Court of India by the appellant wife against the order of the High Court. 

Issues raised 

The primary issue that was raised before the Supreme Court was whether the appellant wife, along with her sons is entitled to any maintenance by the respondent husband (Respondent no. 2). Following were the questions incidental to the main issue in this case:

  • Further, the subsequent issue was what would be considered as the date of divorce between the parties. This was necessary to determine in order to establish the period for giving maintenance to the appellant wife.
  • Moreover, in addition to the aforementioned issues, the Supreme Court was required to determine whether without communicating to the wife about the divorce, a filing of a written statement by the husband containing the statement that the husband had divorced the wife, would amount to a valid divorce. 
  • Furthermore, the Supreme Court had to decide whether, if such a divorce is valid, it would become effective from the date of filing of a written statement.
  • Lastly, the Supreme Court was required to closely examine all the issues raised in this case as it raised serious and significant questions regarding the provisions of maintenance under the Muslim Personal Law of India.    

Arguments of the parties

The arguments put forth by the parties presented a significant dilemma before the courts, at different levels, in order to decide on the matter of maintenance that is to be given to the appellant wife under the Muslim Personal Law. 

Arguments by Appellant/Petitioner 

The appellant/petitioner argued that as per the Muslim Personal Law, she, along with her four sons is entitled to maintenance by the respondent no. 2. 

The appellant argued that since the divorce was pronounced in her absence and it was not even communicated to her in a proper timely manner, such divorce is invalid. Further, she also contended that her marital relationship with the respondent no. 2 does not cease to exist because she was not informed of the divorce at all.  

Argument by Respondent 

The respondent no. 2 filed a written statement before the Family Court and argued that since the appellant was “Sharp, shrewd, mischievous and had brought disgrace to the family”, he felt fed up with her unwelcoming activities and divorced her on 11th July 1987. Therefore, she was not entitled to any maintenance. 

The Respondent further argued that the practice of such divorce as claimed to be given by him is an essential practice of Islamic holy texts and it is not at all in contravention with the rights of women, making the divorce valid. 

He further claimed that the divorce was pronounced in presence of several people and that such divorce was properly communicated to the Appellant. 

Judgement in Shamim Ara vs. State of UP (2002)

The Family Court at Allahabad had dismissed the petition by the appellant wife for claiming maintenance by accepting a reference to an affidavit filed by the Respondent no. 2 on 31st August 1988 in some other civil suit the whereof of which is not available on the record in the present case and in which the appellant is not even a party to the suit, wherein the respondent no. 2 had mentioned that he had divorced the appellant fifteen months before. Therefore, the appellant wife appealed against the decision of the Family Court of Allahabad to the High Court. 

After hearing the arguments by the parties, the High Court held “The divorce which is alleged to have been given by the respondent no.2 to the appellant was not given in the presence of the appellant and it is not the case of the respondent that the same was communicated to her. But the communication would stand completed on 5th December 1990 with the filing of the written statement by the respondent no.2 in the present case. Therefore, the appellant was entitled to claim maintenance from 1st January 1988 to 5th December 1990 (the later date being the one on which the reply to application under Section 125 Cr.P.C. was filed by the respondent No.2 in the Court) whereafter her entitlement to have maintenance from respondent no.2 shall cease”. 

The High Court allowed for a maintenance of Rs. 200 by the respondent no. 2 to the appellant wife for the aforementioned period. 

An appeal was filed before the Supreme Court of India by the appellant wife by way of a Special Leave Petition (SLP), against the order of the High Court with regards to the issue of disentitlement of maintenance. While adjudicating on the questions of validity of divorce and effectiveness of such divorce and maintenance, the Supreme Court referred to various texts related to Muslim Personal Law and stated:

“None of the ancient holy books or scriptures of muslims mentions in its text such a form of divorce as has been accepted by the High Court and the Family Court. No such text has been brought to our notice which provides that a recital in any document, whether a pleading or an affidavit, incorporating a statement by the husband that he has already divorced his wife on an unspecified or specified date even if not communicated to the wife would become an effective divorce on the date on which the wife happens to learn of such statement contained in the copy of the affidavit or pleading served on her”. 

Further, on the issue of whether there was a valid divorce or ‘Talaq’ as per the Muslim Personal Law, the Supreme Court held that for a ‘Talaq’ to be effective, it has to be ‘Pronounced’. The term “Pronounce” simply means to “Proclaim, to utter formally, to utter rhetorically, to declare, or to articulate”. The court further said that based on this understanding, there was no proof of talaq that took place on 11th July 1987. 

The court rejected the consideration of the written statement as a valid corroboration to the existence of a divorce and held “A mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The respondent no. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11th July 1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. So also the affidavit dated 31st August 1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of respondent no. 2, could not have been read in evidence as relevant and of any value”. 

Thus, the Supreme Court, based on such reasoning, held that the marriage does not stand dissolved between the appellant wife and the respondent husband on 5th December 1990. The court further held that the responsibility of the respondent no. 2 to pay maintenance to the appellant wife does not come to an end on 5th December 1990 and the respondent no. 2 shall be liable to pay maintenance until his obligation comes to an end as per the provisions of the law. 

Rationale behind the judgement

While delivering the judgement, Justice R.C. Lahoti referred to the “Mulla on Principles of Mahomedan Law” (19th Edn., 1990) and noted the following in order to put forth his reasoning of the judgement. The text stated that talaq may be oral or in writing. A written document known as a talaqnama or oral (by spoken words) is one way to carry out a talaq. Additionally, nothing specific about the choice of words is required while doing an “Oral talaq”. No proof of purpose is needed if the words are interpreted (saheeh) or articulated as suggesting divorce. Proof of purpose is required if the words are unclear (kinayat). It is not required to utter the talak in front of the wife or even to speak directly to her. The Court further said that the woman should be named while pronouncing the divorce. For reasons of dower, it is not required for the wife to be told of the talak which was pronounced in her absence but her alimony may continue until she receives notice of the divorce.

Further, while referring to the case of Ghansi Bibi v. Ghulam Dastagir (1968), the Supreme Court said that the “Pronouncement of the word talaq in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife, results in the dissolution of the marriage. The intention of the husband is inconsequential”. At the same time, the Supreme Court noted that there has been cases wherein the statement of the husband on the divorce have been considered a valid divorce, even if it has been made during the course of any judicial proceedings, for instance, wherein the wife has filed a suit for maintenance or restitution of conjugal rights. However, such a viewpoint on bringing an end to a marital relationship between muslim couples has been criticised as heavily loaded in favour of Muslim husbands. 

The Supreme Court further mentioned that in the case of Mohammed Haneefa v. Pathummal Beevi (1972), Justice V. Khalid pointed towards the plight of muslim women with regards to the matter of divorce and all other consequential matters, and said “I feel it my duty to alert public opinion towards a painful aspect that this case reveals. A Division Bench of this court, the highest court for this State, has clearly indicated the extent of the unbridled power of a muslim husband to divorce his wife”. He further pointed towards the judgement given by the court in the case of Pathayi v. Moideen (1968) and quoted the statement from the judgement, which indicated the unbridled power of the muslim husbands in context of divorce as “The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law. The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge”. 

Justice Lahoti in the present case, then questioned the reasoning of the people and asked if muslim wives should suffer this tyranny for all the times. He said “Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings?”. Justice Lahoti, further, referred to the case of A. Yousuf Rawther v. Sowramma (1971), and quoted a significant paragraph from the aforementioned case as “The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, ‘if they (namely, women) obey you, then do not seek a way against them’ (Quaran IV:34). Commentators on the Quoran have rightly observed and this tallies with the law now administered in some Muslim countries like Iraq that the husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce. Divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by Talaq ”. 

Analysis of the case of Shamim Ara vs. State of UP (2002)

Shamim Ara v. State of U.P. is a seminal case on the matter of maintenance. However, it is a landmark case on the matter of validity of the ‘Triple Talaq’ in India as well. In 2002, the Supreme Court of India heard a case that dealt with the legality of triple talaq, or the divorce proclaimed by saying the word “Talaq” three times in one sitting. The petitioner, Shamim Ara, used triple talaq to contest the legality of her husband’s divorce decree under Islamic personal law. She claimed that the talaq was unfair, unjust, and devoid of due process. It was also unilateral.

While delivering the judgement in this case, the court referred to the case of Rukia Khatun v. Abdul Khalique Laskar (1981) which laid down the correct law of talaq, as provided by Holy Quran as following:

  • “That the ‘Talaq’ must be for a reasonable cause.
  • That it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. 
  • If their attempts fail, ‘Talaq’ may be affected”.

The Court further examined the provisions of the Constitution of India with regards to the provisions related to divorce and maintenance. The court referred to the case of Bai Tahira v. Ali Hussain (1979) which dealt with the rights of a muslim divorcee with respect to maintenance. It mentioned that Article 15(3) of the Constitution of India is basically a measure of protective discrimination by the state. It says “Nothing in Article 15 shall prevent the state from making any special provisions for women and children”. Section 125 of the Cr.P.C. is one such measure made with respect to protect the rights of women and children. Thus, based on all the above reasoning, the court allowed the application and gave the judgement in favour of the appellant wife. 

Relevant laws 

Section 125 of the Cr.P.C.

Section 125 of the Cr.P.C. is a law that is secular in nature. It means that this provision of law is applicable to all the citizens of India irrespective of their personal laws. Section 125 of the Cr.P.C. is a legislation based on social justice, that is, the provisions under Section 125 of the Cr.P.C. The judiciary has opined in many cases that there needs to be a distinct approach while dealing with cases under Section 125. This distinct approach indicates a shift in the approach from “adversarial” litigation to adjudication based on social justice. In this regard, the case of Badshah v. Urmila Badshah Godse & Another (2014) is significant. This case is a landmark case concerning the rights with respect to divorce and maintenance, which mentioned that the laws should progressively change as per the evolving society. 

Further, the nature of proceeding under this Section is civil and thus, no criminal liability is attached under Section 125 of the Cr.P.C. In the case of Savitri v. Govind Singh Rawat (1985), the question put forth before the Supreme Court of India was whether there is any provision of ‘Interim Maintenance’ under the provisions of Section 125 of the Cr.P.C. In this case, the petitioner (wife) had filed a petition before the magistrate for getting maintenance from her husband according to the provisions of Section 125 of the Cr.P.C. 

Thereafter, she also filed another application before the magistrate for an interim order asking for a reasonable amount of sum for the maintenance. However, the magistrate rejected the application of the petitioner for interim maintenance on the ground that there were no explicit provisions regarding the provision for an interim maintenance under Section 125 of the Cr.P.C. The Supreme Court of India gave the judgement in this case and said that the provisions under Section 125 of the Cr.P.C. are intended to act as a protective and preventive measure, and thus in absence of an express provision restricting an interim maintenance, it can be interpreted as providing implied powers to the magistrate for giving of interim maintenance by the person against whom a petition for interim maintenance has been filed under Section 125 of the Cr.P.C for the period during the pendency of the application.

Muslim Women (Protection of Rights on Divorce) Act, 1986

A suitable maintenance amount and support should be provided to the Muslim woman under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under Section 3(1)(a), it is stated that the previous spouse must provide the Muslim woman fair maintenance and support throughout the iddah period. The state Waqf board shall be responsible to pay money for maintenance to the woman only if she is living alone and has no family or relatives nearby to take care of her wants and necessities, and has no means of supporting herself financially or otherwise. Therefore, the primary motivation for this act was also one of its disadvantages. It restricted the subsistence living amount that her spouse could settle until the Iddah period, after which it could be settled by her, her relatives, or the state Waqf board. 

However, in the later case of K. Zunnaiddin v. Ameena Begam (1989), the court held that the wording in Section 3(1)(a) did not imply that the husband would only be required to pay during the Iddah period, rather it meant that he would be required to support his wife until she remarries. Consequently, the husband will be responsible for providing support to the wife if she never marries again.

Muslim Women (Protection of Rights on Marriage) Act, 2019

One of the important pieces of legislation that the Indian Parliament has approved after the case of Shayara Bano is the Muslim Women (Protection of Rights on Marriage) Act, 2019. By outlawing the practice of triple talaq and offering specific protections and remedies for those who are victims of such divorces, the Act seeks to uphold the rights of Muslim women. By using the word “Talaq” three times in one sitting, including by means of technology such phone calls, texts, or emails, Muslim men might instantaneously divorce their wives under the practice of triple talaq, also known as talaq-e-biddah. This practice of instantaneous divorce without any possibility of reconciliation frequently left women unprotected and without legal redress. The Act states that it is unlawful, null and void for a Muslim husband to give his wife talaq in the form of triple talaq, whether it be orally, in writing, or electronically. Any such declaration of talaq is subject to a fine and a maximum three years of sentence to jail.   

The Act offers a number of protections to uphold the rights and interests of Muslim women who have undergone triple talaq divorce. It stipulates that the woman and her dependent children must get subsistence maintenance during the iddah (waiting period of time) and forbids the husband from forcing his wife out of the marital residence. According to the Act, the Magistrate must order the husband to give his wife and her dependent children a subsistence maintenance for the duration of iddah. The Magistrate decides how much subsistence allowance is to be given, considering the husband’s financial situation. The Act stipulates that the Magistrate will decide upon the matter of the custody of the minor child during the iddah time. 

The Act gives the welfare of the child utmost priority and takes into account the age and gender of the child when deciding who gets custody. According to the Act, a husband who has committed the crime of pronouncing triple talaq is not eligible for bail. Instead, the accused must go before the magistrate and show that there are good reasons to grant bail. The Act permits compounding of the offence at the request of the wife and with the approval of the magistrate. When a husband and wife reach a settlement, it is considered “compounding” under the act, and the husband is free to revoke the decree of divorce and make amends with his spouse. According to the Act, the implementation of the Act will nullify any ongoing judicial processes that a Muslim husband has started for the proclamation of triple talaq.

Additionally, the Act allows for the establishment of Protection Officers to help victims of triple talaq avail themselves of their rights and remedies under the Act, and it gives the Magistrate the authority to enforce its provisions. Furthermore, the Act mandates that State Governments take the appropriate actions to ensure the successful execution of its provisions and to raise public awareness of the rights of Muslim women.

Difference Between Section 125 of the Cr.P.C. and the Muslim Women (Protection of Rights on Divorce) Act, 1986

Both the law and the Section talks about provisions of maintenance. However, there are some crucial differences between them. The case of Danial Latifi v. Union of India (2001) is a landmark case in understanding the difference between them. In this case, the husband of Danial Latifi divorced her and subsequently, she filed for a petition for maintenance for herself and her children under the provisions of Section 125 of the Cr.P.C. The question before the court was whether a Muslim woman can sought maintenance under the provisions of Section 125 of the Cr.P.C. The Supreme Court of India held that the Muslim women are entitled to receive compensation even after the completion of the iddah period until she remarries. This case also provided the decision on the issue of applicability of Section 125 of the Cr.P.C. on Muslim women. With the help of this judgement, the following differences can be inferred:

Application

  • Section 125 of the Cr.P.C. is a secular law that all Indian citizens are subjected to, regardless of their faith. It permits spouses, kids, and parents, including Muslim women, to ask their husband, father, and son respectively or other financially stable family members for maintenance.
  • The Muslim Women (Protection of Rights on Divorce) Act, 1986 focuses on Muslim women in particular and covers their rights and benefits after divorce. It focuses on concerns related to divorce and is solely applicable to Muslim women.

Reasons for Maintenance

  • Under Section 125 of the Cr.P.C., a woman, including a Muslim woman, may request maintenance under this section for a number of reasons, including neglect, the husband’s unwillingness to support her, or his incapacity to do so.
  • Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the principal subject concerns Muslim women’s maintenance rights upon divorce.
  • It guarantees maintenance for a divorced Muslim woman throughout the duration of the iddat and, if needed, afterward in case she is unable to support herself.

Procedure

  • As per Section 125 of the Cr.P.C., the Magistrate’s court hears maintenance cases under Section 125 of the CrPC. This makes it as an easy and feasible way for women to seek maintenance in a shorter period of time, without any prolonged judicial proceedings 
  • According to the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Family Courts or other appropriate courts consider maintenance matters. The Act lays forth precise guidelines and processes for determining and executing the responsibility of a Muslim husband with regards to providing maintenance to their divorced wives.

Time

  • Under Section 125 of Cr.P.C., the wife may request support as long as she lives or until she remarries as long as she continues to meet the requirements.
  • The Muslim Women (Protection of Rights on Divorce) Act, 1986, Act mostly deals with maintenance during the iddah period and includes provisions for continuing maintenance when the divorced woman is unable to support herself.

Significance of the judgement in Shamim Ara vs. State of UP (2002)

Following cases are evidence to draw a detailed significance of the present case.

Iqbal Bano v. State of U.P. (2007)

In the case of Iqbal Bano v. State of U.P. (2007), the Supreme Court reiterated the decision given by the Supreme Court in the landmark case of Shamim Ara v. State of U.P. (2002) with respect to the essential requirement for having a valid divorce as per the Islamic Law. The Supreme Court stressed on the need for following the due process while pronouncing divorce and ensuring that the principles of fairness and equality remains intact during the proceedings regarding divorce, involving triple talaq. 

In this case, the brief facts are that in the year 1959, the appellant had married respondent no. 2, and in 1966, a child was born out of wedlock. Unfortunately, the son passed away in 1991. Respondent no. 2, who was living apart from the appellant, ceased visiting the appellant’s residence where she was residing and also made no payment for her daily needs. As a result, she filed a petition on 21st February 1992 under Section 125 Cr.P.C. for claiming maintenance from the Respondent no. 2. By filing a written statement before the Court, the Respondent no. 2 claimed that he had divorced his wife many years ago by using the words “Talaq” thrice. It was also mentioned that they had severed their marital links for years since the divorce was finalised using the phrase “Talaq” three times, after paying Mehr, and the Iddat period already passed long back by now.

The Supreme Court reiterated the decision given in the case of Shamim Ara v. State of U.P. and said that such a divorce cannot be said to be pronounced. A mere plea in a written statement of having pronounced the divorce sometime in the past cannot by itself be considered as effectuating the talaq on the date of delivery of the copy of the written statement to the wife. The Court clearly emphasised on the fact that a plea of previous divorce taken in a written statement cannot be treated as pronouncement of talaq at all by the husband to the wife on the date of filing of the written statement in the Court and delivery of a copy of the written statement thereof to the wife. 

Shayara Bano v. Union of India (2017)

It was the case of Shayara Bano v. Union of India (2017) that the question of the constitutional validity of the ‘Triple Talaq’, also known as Talaq-e-biddat was put forth before the apex court of the country. The petitioner, Shayara Bano, questioned the Islamic practice of instantaneous triple talaq, in which a Muslim husband may declare divorce from his wife by using the word “talaq” three times in one sitting, frequently with no provisions for making reconciliation or taking the wife’s rights into account. The brief facts of the case are that Shayara Bano, the petitioner, was married to Rizwan Ahmed for 15 years. Rizwan Ahmed divorced Shayara Bano in the year 2016 by giving instantaneous triple talaq. Thus, Shayara Bano filed a petition stating that the three practices, namely, the ‘Talaq-e-bidat’, ‘Polygamy’ and ‘Nikah-Halal’ should be held unconstitutional as it is violative of fundamental principles of Indian Constitution. 

Shayara Bano Case is also popular with the name of ‘Triple Talaq Case’. The judgement of this case held the instantaneous practice of triple talaq unconstitutional. The Judgement was given by a five-judge bench with a ratio of 3:2. Subsequently, the Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed under which the practice of triple talaq was made illegal and punishable. The Supreme Court further mentioned that the practice of triple talaq does not form part of the essential practice of Islam and thus can be struck down. The Court pointed out that the majority of the Muslim countries does not follow the practice of triple talaq in supporting its decision. 

In its ruling, the Indian Supreme Court ruled that the practice of immediate triple talaq violates the fundamental rights protected by the Indian Constitution, such as the rights to equality, dignity, and non-discrimination. The court ruled that quick triple talaq is discriminatory against women and is not a necessary religious practice in Islam. The ruling stressed upon the necessity of legislation that is gender-neutral and the significance of defending the rights and dignity of Muslim women. 

Conclusion 

The Supreme Court examined the applicability of Islamic law and the interpretation of Islamic law to understand whether such a divorce is valid. However, in the Shamim Ara case, the issue was restricted to whether there is any valid divorce and if there is a valid divorce, then what are its implications with respect to the provisions of maintenance rights of muslim women as per Muslim Personal Laws or Section 125 Cr.P.C. 

The case of Shamim Ara v. State of U.P. is a significant case with respect to the rights of Muslim women concerning divorce and maintenance. In order to address gender-based inequality and guarantee the protection of women’s rights, the ruling encouraged conversations and debates on the necessity of legislative changes within Muslim personal law. It emphasised how crucial it is to interpret Islamic law in a way that is consistent with the values of equality, gender justice, and human rights. Thus, this case marks a critical turning point in the development of Muslim personal law precedent in India. It highlights the continuous need for legal reforms to address gender-based injustices and inequities and reflects a movement in the Muslim community towards a more rights-based approach to divorce and marital relations concerns.

Frequently Asked Questions (FAQs)

Do Muslim women have the right to seek maintenance under Section 125 of CrPC and under the Muslim Women (Protection of Rights on Divorce) Act, 1986 as well?

Yes, Muslim women have the right to seek maintenance under Section 125 of Cr.P.C. as well as under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Section 125 of the Cr.P.C. is a secular provision of law applicable to all the citizens of India and thus a Muslim woman can seek maintenance under it as well. At the same time, the Muslim Women (Protection of Rights on Divorce) Act, 1986 is personal law of Muslims and a Muslim woman can seek maintenance under it as well. The provisions of both the legislations are to be applied concurrently and a women cannot be barred 

What is the period of Iddah as per the Muslim Women (Protection of Rights on Divorce) Act, 1986? 

According to the Muslim Women (Protection of Rights on Divorce) Act, 1986, the length of iddah varies based on the type of the divorce. When a husband files for divorce, a divorced woman has three menstrual cycles, or around three lunar months of iddah post the divorce’s formal announcement. In the event of the death of the husband, Iddah is the period of four months and ten days post the date of the death of the husband. 

What are the elements included in the maintenance under the Muslim law in India?

The Muslim law in India includes basic necessities of food, shelter, clothing, education and other necessities of life under the provisions of maintenance. 

Can a Muslim woman claim maintenance from her previous husband even after the expiry of the Iddah period?

Yes, a Muslim woman can claim for maintenance from her previous husband even after the expiry of the Iddah period as long as she remains unmarried. This was held in the case of Razia v. State of U.P. (2022). 

Who is ineligible to claim maintenance under Section 125 of the Cr.P.C.?

According to Section 125 of the Cr.P.C., people who can support themselves, married women who choose to live apart without a good reason, remarried women, wives who have committed adultery, children who are major and earning, and married children who are no longer dependent on their parents are among those who are not eligible for maintenance.

What are the provisions under the Muslim Law for maintenance of children? 

The father is principally liable for the maintenance of his minor children in Muslim law. In accordance with his ability, he must meet all of their material requirements, including those for food, clothes, housing, and education. Other family members, including the mother or the paternal grandparents, could be asked to contribute support if the father is unable to do so. In addition, the father must provide for the child’s needs financially. In case of a son, the father shall pay for his maintenance until he reaches puberty. In case of a daughter, a father shall provide maintenance until she gets married, if the child is under the mother’s custody following a divorce or separation.

References

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here