This is a welcome underlining by the court that the spirit of the Constitution and its promise of equality cuts across religious and other identities and divides.
The Supreme Court on Wednesday ruled that a Muslim woman’s right to claim maintenance under criminal law cannot be extinguished even if she has claimed her rights in personal law. This has been the lawful position for over two decades following the 2001 landmark ruling, Daniel Latifi versus Union of India. Yet there has been some concern on whether special legislation — the Muslim Women (Protection of Rights on Divorce) Act, 1986 — could override the Code of Criminal Procedure, a general legislation. Now the bench headed by Justice B V Nagarathna has held that a parallel remedy in law that applies universally cannot be taken away by religious custom despite the latter being codified as legislation. This is a welcome underlining by the court that the spirit of the Constitution and its promise of equality cuts across religious and other identities and divides.
Muslim women’s right to maintenance has been a fraught issue. While the 1986 Act requires that maintenance is paid to a Muslim woman by her former husband within the iddat period (three lunar months after the divorce) by her former husband, Section 125 of the CrPC is a penal provision that requires a man to pay maintenance to his wife or former wife who is “unable to maintain herself.” From the 1985 Shah Bano case to the Daniel Latifi ruling in 2001, the Supreme Court has maintained that a Muslim man’s limited obligation under personal law cannot override Section 125 of the CrPC, despite resistance to the rulings both politically and from within the community. The latest ruling, while scrupulously following the precedents, also marks a remarkable shift in its framing of the right to seek maintenance. It highlights that maintenance must not be viewed “as a mere charity” and is a matter of “parity and rights, essential for women.” “This Court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity. It follows that a destitute Muslim woman has the right to seek maintenance under Section 125 of the CrPC despite the enactment of the 1986 Act,” it says.
The apex Court also shows wisdom in framing the issue of gender justice not as antagonistic to freedom of religion. It sees both as complementing the rights secured under the Constitution. This framing is especially resonant given the Constitution’s high visibility as a symbol and motif in the recently concluded Lok Sabha elections. It is also a timely reminder for other battles pending in court — from temple entry to the right to excommunicate. The Constitution should be the guiding principle for all, even for personal law.
