In holding that a divorced Muslim woman is not barred from invoking the secular remedy of seeking maintenance under the Code of Criminal Procedure (CrPC), the Supreme Court of India has done well to clarify an important question concerning the impact of a 1986 law that appeared to restrict their relief to what is allowed in Muslim personal law alone. The enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, was a watershed moment that is seen as having undermined the country’s secular ethos by seeking to nullify a Court judgment in the Shah Bano case (1985), which allowed a divorced Muslim woman to apply for maintenance from a magistrate under Section 125 of the CrPC. Subsequently, the 1986 law was upheld by a Constitution Bench in 2001 after coming close to declaring its provisions unconstitutional for discriminating against Muslim women. The Act was declared valid after the Bench read it down in such a way as not to foreclose the secular remedy for Muslim women. Several High Court judgments took different views on whether Muslim women should avail of Section 3 of the 1986 Act or Section 125 of CrPC. The latest verdict by a Bench of Justice B.V. Nagarathna and Justice Augustine George Masih settles this question by holding that the codification of a Muslim woman’s rights in the 1986 Act — including the right to maintenance during the Iddat period, provision for a dignified life until she remarries, and return of mehr and dowry — was only in addition to and not in derogation of her right to seek maintenance like a woman of any other religion.
Justice Masih, in his main opinion, concludes that both the personal law provision and the secular remedy for seeking maintenance ought to exist in parallel in their distinct domains. While the CrPC may be invoked by a woman if she was unable to maintain herself, the 1986 Act makes it a Muslim husband’s obligation to provide for his divorced wife and her children up to a certain point. Justice Nagarathna, in her concurring opinion, looks at the social purpose behind the provision for maintenance in the CrPC, namely that it aims to prevent vagrancy among women by compelling the husband to support his wife. The 1986 Act codified the right available to a divorced Muslim woman in personal law. This right is in addition to, and not at the cost of, the rights available in existing law. The verdict is a great example of the Court using harmonious interpretation to expand the scope of rights as well as to secularise access to remedies. In the process, the Court has also neutralised the perception that the right of Muslim women to seek maintenance under secular provisions stood extinguished since 1986.
