Raising the bar on gender parity

The Supreme Court (SC) has done well to rule that a divorced Muslim woman is entitled to seek maintenance from her former husband under Section 125 of the Criminal Procedure Code. The ruling is very much in line with the apex court’s progressive jurisprudence that seeks to remove barriers that stand in the way of women from enforcing constitutional rights. The two-judge bench, upholding a Telangana high court directive that directed ₹10,000 as interim alimony to a divorced woman, emphatically rejected arguments that sought to privilege personal law over the country’s secular law.

The spirit of the separate but concurring judgments by the two judges is best summed up in Justice BV Nagarathna’s order, where she wrote: “Maintenance is a facet of gender parity, not charity”. Justice Nagarathna’s observation that married Indian men need to become conscious about financially empowering and providing for their wives, who do not have an independent source of income, also reflects upon the secular principle underlying the judgment — the financial precarity of many married Indian women and the need for their financial empowerment.

In the broader context of the personal law debate in India, the Supreme Court has taken forward the philosophy implicit in its Shah Bano judgment (1985), which upheld the right of a divorced Muslim woman to alimony under secular law. The then Union government enacted the Muslim Women (Protection of Rights on Divorce) Act in 1986 under pressure from conservative clerics, politicians and civic leaders to override the judgment. However, the SC’s interpretation of the Act in Danial Latifi (2001) ensured that its progressive, egalitarian intent in Shah Bano prevailed — the right of the divorced woman to receive fair and reasonable alimony from her former husband. It is the same spirit that drove the Court to deliver the triple talaq judgment (2017), where it ruled against the divorce provision, invoked under the personal law, on grounds that it violated gender equality.

Rather than read the judgment as against Muslim personal law, it would be fair to conclude that the apex court has expanded the legal avenues available to divorced women seeking redress on alimony. In a complex country like India, personal laws will continue to hold sway, subject to reforms as and when needed, but no citizen, irrespective of her faith, should be denied recourse to the secular law and its protection of constitutional rights. Simply put, personal laws cannot be invoked as a ground to protect patriarchal privileges underwritten by religious morals.

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