Apex court’s final word on law and redress in alimony

Jul 12, 2024 09:19 PM IST

The applicability of the CrPC provisions to Muslims had been affirmed first by the Kerala high court (Badruddin, 1957). In a later case, Justice VR Krishna Iyer (then in the same court) strongly supported the decision saying “I have no doubt that it behoves the courts in India to enforce Section 488 of the CrPC in favour of all Indian women, Hindu, Muslim or others.” (Shahulameedu, 1970). Next year, Iyer, as a member of the Law Commission of India, strongly recommended that under the new CrPC (then being drafted) the relief provided for married women be made available to divorced wives as well. The government of the day proposed to accept his recommendation but faced stiff opposition from Muslim religious circles and eventually incorporated it into the 1973 CrPC with some concessions to partly accommodate the contrary rules of personal laws and custom. On being elevated to the Supreme Court, Justice Iyer tried to mitigate the effect of the said concessional provisions by subjecting them to strict conditions (Bai Tahera, 1979). In a subsequent case, he even reprimanded a high court for not following his ruling (Fuzlunbi, 1980). As these cases led to simmering discontent among Muslims, the next case on the issue was referred by Justice Murtaza Fazal Ali to Chief Justice YV Chandrachud for a decision by a larger bench. It was this reference that led to the constitutional bench decision in the celebrated Shah Bano case of 1985.

Muslim leaders of the time vehemently opposed Shah Bano and, on their demand, the government chose to enact a remedial Act in 1986, which, in the sight of those leaders, made the new ruling almost ineffective. Several high courts did not agree with this understanding and interpreted the new Act so as to keep Shah Bano alive. The constitutional validity of the new Act was challenged soon but the matter was decided 16 years later, by another Constitution bench headed by Justice Rajendra Babu (Danial Latifi, 2001). He willy-nilly upheld the disputed Act but decisively ruled that it had to be applied strictly in accordance with the Shah Bano judgment. During the years that followed, in several cases beginning with Khatun Nisa (2002), the apex court treated the CrPC provisions and the Act of 1986 as parallel legislations in pari materia, and did its best to harmonise them in letter and spirit. Yet there remained a need for a clear-cut ruling that the option to seek relief under either of the two laws lies with the aggrieved women. The verdict in Abdul Samad eminently fulfils this pressing need.

The story of this case has virtually been, and remains, a routine in Muslim households — relations between a couple coming under the weather, the wife going away from the matrimonial home and initiating criminal proceedings against the man, he, in turn, unilaterally divorcing her and then trying to defeat in the court her claim for maintenance by taking recourse to the popular understanding of Muslim law on the subject. This is what a Telangana man did and, when the trial court decided the wife’s claim in her favour, appealed to the state high court with a plea that the dispute had to be adjudicated upon not under the CrPC but exclusively under the 1986 Act, which according to his counsel’s knowledge had more or less enforced the traditional Muslim law and remains in force in that sense. Failing to get relief there, the man knocked at the apex court’s doors. An amicus curiae appointed by the court submitted to it a summary of all the past cases on the issue, and the two judges on the bench wrote separate but concurring judgments. Both made it clear beyond doubt that the CrPC law is as much available to Muslim women as the Act of 1986, and that they can avail either of these laws as they wish, or even both.

To put the issue in its historical perspective the two learned judges, AG Masih and BV Nagarathna, took pains to narrate in their respective judgments the four-decade-long story of judicial approaches to the contentious issue — from Krishna Iyer’s Bai Tahera decision of 1979 to R Bhanumati and Indira Banerjee’s conflicting rulings in the Rana Nahid case of 2020. Together, they dismissed the husband’s appeal against the Telangana high court verdict.

The judgment of Justice Nagarathna in the case exhibits her deep concern for those married women who are not breadwinners but just homemakers. She writes, “In the case of a woman who has an independent source of income, she may be financially endowed and may not be totally dependent on her husband and his family. But what is the position of a married woman who is often referred to as a homemaker and who does not have an independent source of income whatsoever and is totally dependent for her financial resources on her husband and on his family?” I do humbly share her fervent appeal that “an Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife who does not have an independent source of income.”

The CrPC law on maintenance has been substantially retained in its new version, the Bhartiya Nagrik Suraksha Sanhita (BNSS) of 2023, which came into effect early this month. The apex court decision will apply to the new equivalent provisions as well.

Tahir Mahmood is former chairman of National Minorities Commission and ex-member of the Law Commission of India. The views expressed are personal