RIGHT TO MAINTENANCE
Shah Bano ......Appellant
Vs
Mohad Ahmed..... Respondent
BENCH: Chief Justice Chandrachud, Rangnath Misra, D. A. Desai, O chinnappa reddy, and E. S. Venkataramiah
PROBLEM
Almost three decades after the Supreme Court judgment in the Shah Bano case raised questions on the sanctity of personal laws, comes in the Shayara Bano case that has once again stirred the religious orthodoxy versus gender February last justice debate. In year, Shayara, a resident of Kashipur in Uttarakhand who was given instantaneous triple talaq by her husband, approached the Supreme Court. Her petition challenged the longtriple talaq), nikah halala ( standing practices of talaqulbid d at (instantaneous prohibition on remarriage with the divorced husband without consummating marri age with another man) and polygyn government has filed an affidavit that iny. Now, the Union principle supports the petitioner’s demand for doing away with such practices. The Mu slim Personal Law (Shariat) Application Act, 1937, allows Indian Muslims to be governed by the Shariat (Islamic law), based on the Quran and Hadith (utterances of the Prophet), in matters of personal law. In the absence of any codification even within the Quranic framework, however, the Shariat has been subject to interpretations by the Muslim clergy, who have held these practices as sacrosanct. But stating that Muslim women, merely by virtue of their gender and religion, are being denied their right to equ discrimination, Shayar al protecti on under law and protection against a’s petition argues that talaq the Quran an d that polyg y nyulbid d at has no foundation in is not an integral part of Islam. Shayara’s is the first such petition to challenge it citing th e fundamental rights guaranteed by the Indian Constitution. The petition invokes Articles 14, 15, 21 and 25 that deal with the right to equality before the law, protection against discrimination on grounds of sex or religion, protection of life and persona religion respectively. l liberty and freedom of While the petition was originally filed by the lawyers of Shayara Bano, over the last several months, it has been clubbed with several other petitions, including those filed by a few other affected women. Mu slim scholars such as Irfan Ali Engineer through his Centre for Study of Society and Secularism and several Muslim women’s groups such as the Bharatiya Muslim Mahila Andolan (which has over 1 lakh members across 15 states) and Bebaak Collective (coalition of seven Muslim women groups across India) have also filed intervening petitions supporting Shayara’s demand. Also expected to join the fray is the All India Muslim Women Personal Law Board, which has in the past drafted its own Sharia Nikahnama that gives equal rights to men and women and repeatedly spoken against triple talaq.
FACTS & PROCEDURAL HISTORY
- In 1932 Shah Bano (appellant) a Muslim woman was married to Ahmed khan (respondent) an advocate. Five children were born out of the wedlock.
- In the year 1975 respondent was thrown out of her house along with her children by appellant.
- Three years later she filled a petition under section 125 of Criminal procedure code in court of judicial magistrate against appellant seeking maintenance of Rs.500 per month.
- In 1978 appellant divorced respondent by pronouncing ‘triple talaq’.
- Triple talaq is an irrevocable form of talaq where a Muslim husband can divorce his wife by uttering talaq three times.
- “In 1979 Magistrate ordered appellant to pay amount of 25 per month to respondent as maintenance”. Respondent was aggrieved by the order of Magistrate because appellant earns professional income Rs.60000 per year so she filled revisional application in High Court of Madhya Pradesh. In 1980 High Court enhanced the amount to Rs.179.20 per month to be paid by appellant to respondent.
- The judgment of High Court raised several objections and thus the Shah bano verdict was challenged before Supreme court.
PROVISIONS/SECTION APPLIED
- Section 125(1)(a) of The Code of Criminal Procedure states that if a divorced woman is unable to maintain herself then she can claim alimony from her husband by filling an application under this section. The magistrate shall order her husband to pay monthly allowance to his wife as maintenance. Such monthly allowance should not exceed Rs.500 in total. Explanation to this section defines the word ‘WIFE’. It includes a divorced woman as long as she remains unmarried. It also states that if husband marry another women after divorce or keeps a mistress in his house then it shall be a sufficient reason for wife to not to live with him.
- Section 127(3)(b) states that magistrates making order for maintenance under section 125 is empowered to cancel such order if women in favor of whom the order is passed “has received whole of the amount under customary or personal law applicable to parties”.
- Section 2 of Muslim Personal law (Shariat) application act 1937 states that Muslims are not government by any other law except shariat law. The provisions of Criminal procedure code do not apply to them.
ISSUES FRAMED
- Whether section 125(1)(a) applies to all religion or not?
- Whether women are entitled to claim maintenance after the expiry of Iddat period?
ARGUMENTS BY PARTIES
APPELLANT
- It was argued before Hon’ble court that according to section 2 of The Muslim Personal Law, Muslims are not governed by any other law except Shariat law. Which means that only personal laws are applicable to Muslims and hence respondent is not entitle to claim maintenance under section 125.
- It was alleged that he paid her Rs.200 per month as maintenance for two years and has also submitted Rs.3000 in court as Dower. Under Islamic law if a woman is divorced by her husband and dower has been paid then maintenance can be claimed only during Iddat period, once this period expired then she cannot claim maintenance.
RESPONDENT
- It was argued that Section 125(1)(a) is secular provisions. This section was enacted provide quick relief to persons who are not in a position to maintain themselves. Right of Alimony to women is a right given to us by statues and is unaffected by the religion of the person.
- Respondent in his defense said that if husband out of his moral obligation should maintain his wife. In such a case Alimony can be claimed beyond Iddat period.
JUDGEMENT
BENCH: Chief Justice Chandrachud, Rangnath Misra, D. A. Desai, O chinnappa reddy, and E. S. Venkataramiah
The apex court delivered a landmark judgment in favor of respondent Shah bano and validate the decision given by High Court of Madhya Pradesh.
The right to claim maintenance is a right given to us by statues so it is not affected by religion. If she is unable to maintain herself after divorce then she can take recourse to section 125(1)(a) and Mahr does not dissolve the liability of Muslim husband from payment of alimony under section 127.
The Court noted that:
“Civil provisions do not supplant the personal law of the parties but that simultaneously, the religion of the parties and the personal law that applies to them cannot have any repercussion on the applicability of such laws.. ”
Supreme Court also observes that Article 44 of Constitution of India talks about Uniform Civil Code must be brought forward to remove conflicts in society.
Muslim Protection Act 1986 was enacted by parliament of India under Rajiv Gandhi Government. The decision in Shah Bano case was criticized by Muslim because according to them it is contrary to their ‘Ismalic law’ and rules of ‘Quran’. Act states that a divorced Muslim women is entitled to a receive amount of maintenance only during Iddat period.
CONCLUSION
Now we can conclude that the judgment delivered in Shah Bano Begum Case is a result of general and common will of society which is necessary to protect the rights. Law must change with the changing circumstances of the society. Law which restricts or violates the constitutional rights of any persons should not be encouraged. Customs, social Practices, religion plays a vital and important role in development of law.