By Vaishali Singh and Monish Raj
Indian society has consistently been the site of an impasse between gender equality and religious traditions. Religious traditions gain dominance over gender equality and consequently, the injustice faced by a particular gender, usually women, gets marginalized for upholding majoritarian religious views. An effective way to resist such marginalization is implementing universal norms that supersede class, religion, and gender differences and uniformly apply to all. Shamim Bano v. Asraf Khan is one such milestone as it interprets Section 125 of the Code of Criminal Procedure to be universally applicable to women regardless of personal laws’ dicta on the matter.
Relevant Statutes and Provisions
Section 125 of the Code of Criminal Procedure is a uniformly applicable provision that provides civil remedies to enforce the fundamental obligation of a person to maintain his wife, children, or parents so long as they cannot do so. Ordinarily, the rights and duties under this section have an overriding effect over personal laws. However, this is subject to the exception of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which is a self-contained statute that codifies the obligations of a Muslim husband and other relatives towards a Muslim woman and provides remedies for enforcing the rights of the woman. This Act enshrines the Muslim law principle that a husband’s liability to pay maintenance to his divorced wife extends until the Iddat period. Further, Section 125 can have no application to a Muslim woman unless both the husband and wife consent to be subject to it under Section 5 of the Act.
Facts of the Case
In 1993, Shamim Bano and Asraf Khan were married according to Shariyat law. A year into the marriage, Shamim Bano filed a criminal complaint against her husband and his family for allegedly torturing her and demanding dowry. The accused were tried and acquitted of these charges; however, during the pendency of the trial, Shamim Bano also filed for maintenance from her husband under Section 125 of the Criminal Procedure Code in the Court of Judicial Magistrate First Class, Durg on the grounds of cruelty and desertion. In 1997, Shamim Bano and Asraf Khan divorced before the Magistrate could resolve the maintenance application. Further, after the divorce, Shamim Bano also filed for maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, before the same court.
Procedural History
Court of Judicial Magistrate First Class
In 1999, the application for grant of maintenance under Section 125 of the Code was dismissed for lack of proof of cruelty or desertion on the part of Asraf Khan. The application under Section 3 of the Act was allowed and the husband and other family members were ordered to pay mahr, return her goods and ornaments and pay Rs 1750 as maintenance for the Iddat period.
Revisional Court
The revisional court upheld the Magistrate’s order.
High Court
In 2005, this order was appealed in the High Court but the husband raised an objection contending that the petition under Section 125 was not maintainable as the provisions in Section 5 of the Act were not complied with. Further, he contended that the petition should be dismissed as a Muslim woman is entitled to maintenance only under the Iddat period and as the Magistrate had granted the same, the application under Section 125 was not tenable. The High Court agreed with the husband’s contentions and dismissed the appeal. Thus, Shamim Bano appealed to the Supreme Court through a Special Leave Petition in 2012.
The Supreme Court's Verdict
The order of the High Court was reversed and the court held that the proceedings under Section 125 of the Code are maintainable, although the divorce had been given effect and Shamim Bano had taken recourse to Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The matter was sent back to the Magistrate, and the court held that maintenance can be granted to a Muslim woman even after the expiry of the Iddat period.
Analysis
The central controversy in this judgment was whether or not a Muslim woman could claim maintenance under Section 125 of the Code after the expiry of the Iddat period. To resolve this question, the Supreme Court analyzed the development of legal opinion on the applicability of Section 125 to Muslim women.
The Shah Bano Judgment
The first case where this conflict of opinion first came to light was the historic judgment of Mohd. Ahmed Khan v. Shah Bano begum and Ors. A constitutional bench of the Supreme Court held that a divorced Muslim woman is entitled to maintenance under Section 125 of the Code. The court relied on religious texts of Mahomeddan law and Quranic interpretations to reach this conclusion.
Aftermath of Shah Bano Judgment
The orthodox groups launched protests and agitations against this judgment as they saw it as an interference in their personal law. The Government, thus, unanimously passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which took precedence over the uniformly applicable Criminal Procedure. According to this Act, Muslim women had the right to maintenance from their husbands only for the Iddat period after which the burden of maintenance was transferred to her relatives or the District Waqf Board. This is the law on maintenance for divorced Muslim women at present.
Harmonious Construction of Section 125 and the Act
One of the most notable cases after the Shah Bano judgment is Danial Latifi and Anr. v. Union of India. The Constitution Bench came to a compromise where it upheld the validity of the Act but decided that the provision for maintenance would be applicable equally to the Muslim community. The Bench liberally interpreted Sections 3 and 4 of the Act and stated that a divorced Muslim woman is entitled to reasonable and sufficient provision for livelihood along with maintenance and thus, the husband is duty bound to provide this within the Iddat period (as stated by the Act). However, it held that this maintenance is not limited to the Iddat period and a Muslim woman is also entitled to maintenance for her entire life or until she remarries. The court interpreted the act to mean that the limitation in the Act was not on the nature or duration of maintenance but rather on the period within which such maintenance or provision had to be made. Thus, the Supreme Court tried to capture the spirit of Section 125 of the Code and secularly apply it to Muslim women.
In Khatoon Nisa v. State of Uttar Pradesh and ors., a constitution bench of the apex court further expounded on the interpretation laid down in Danial Latifi by holding that the powers under Section 125 of the Code and Section 5 of the Act were the same and thus, a Magistrate could grant maintenance to a divorced Muslim woman as per the principles of Section 125 even though the same had not been invoked by the parties. However, the court did not dispute that Section 125 per se could not be invoked until the parties consented to be subject to it; it only tried to equalize the powers granted to the Magistrate under both sections.
Interpretation in Shamim Bano v. Asraf Khan In the Shamim Bano case, the Supreme Court has combined the interpretations espoused in Shah Bano and Danial Latifi and correctly held that Shamim Bano is entitled not only to mahr, ornaments and maintenance under Section 3 of the Act but also to maintenance for the post- Iddat period as the same has not been provided in the order granting mahr. Additionally, the Bench sustained her application under Section 125 of the Code despite the fact that her husband, Asraf Khan had not consented to the same. The court realized that if the application under Section 125 was dismissed, Shamim Bano would be remediless as the Magistrate’s order only ensured mahr and did not give her any maintenance. Thus, foreseeing this situation as a travesty of justice, the court reasoned that Section 125’s parameters should be applied.
Conclusion
The most remarkable feature of Shamim Bano v. Asraf Khan is that the court has preferred the welfare of women over the formalist guidelines of law by acknowledging the injustice of applying the Muslim Women (Protection of Rights on Divorce) Act, 1986 to practical situations. This is apparent as the court categorically refuted the husband’s argument of the petition under Section 125 not being tenable. Previous decisions such as Danial Latifi have tried to work out a compromise between the Act and the Code through liberal interpretation but in this judgment, the Supreme Court recognizes that women do not have an express right to maintenance under the Act and therefore, grants them the right to file an application under Section 125 of the Code without the consent of the husband. Thus, this decision has improvised on Shah Bano and given legitimacy to the secular character of Section 125.
The authors of this artucle are Vaishali Singh and Monish Raj, second-year BALLB students at NALSAR, Hyderabad.
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
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