THE recent Supreme Court’s judgement in Md. Abdul Samad v. State of Telangana and Another extended the provisions of section 125 of the CrPC to divorced Muslim women. In this case a divorced Muslim wife had been awarded a sum of Rs 20,000 pm by the Family Court which was reduced by the High Court to Rs 10,000 pm under S125 of the CrPC. The Supreme Court didn’t revise the quantum of maintenance but refused to accept the husband’s appeal that the wife couldn’t avail the remedy under Section 125 of the CrPC as she could only apply for maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Apart from relying on other grounds, the husband contended that the non-obstante clause in Sections 3 and 4 of the 1986 Act which began with the words, “Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled… to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband” restricted the wife’s right to apply for maintenance under section 125 of the CrPC.

The 1986 Act was passed after a host of judgements stating that a divorced Muslim woman was also entitled to maintenance under the S125 CrPC as that was a social welfare measure for women across religions to prevent destitution and patriarchal and conservative members of the Muslim society got the 1986 law enacted by the then Congress government in an attempt to restrict a divorced Muslim woman’s right to maintenance to the Iddat period. However, while interpreting the scope of the 1986 Act the landmark case of Danial Latifi vs Union of India had held that the entitlement of divorced Muslim women to maintenance and a fair and reasonable provision was not only for Iddat period but for her entire life though the sum had to be given to her within the Iddat period and this would also be in tune with a woman’s right to be equal and not to be discriminated.

After the 1986 Act, certain High Courts held that Section 125 of the CrPC would not apply to a divorced Muslim woman and while others like Kerala High Court held that divorced Muslim women could continue to apply for maintenance under S125 CrPC.

Justice Nagarathna, in the Abdul Samad case held that the right to maintenance was a constitutional right and Article 15 of the Constitution expressly prohibited discrimination on the ground of religion, while Article 39 (e) of the Directive Principles enjoined the State to look after the health and strength of workers, men and women … amongst others. She said that if “both Article 15 and Article 39 are read together they manifest a constitutional commitment towards special measures to ensure a life of dignity for women. She further held that both try to ensure social justice and freedom of discrimination from the shackles of gender-based discrimination, disadvantage and deprivation.”

Justice Nagarathna also stressed on the duty of the Indian husband to provide shelter and maintenance to his wife particularly the homemaker who is dependent on her husband. She held that maintenance is a rehabilitative and not a punitive measure as it sought to provide a deserted wife with food, clothing etc. After quoting a series of judgements prior to the enactment of the 1986 Act, the Court held that non obstante clause was not in derogation of the right created in any other law but was only an additional right for divorced Muslim women. She said that parliament didn’t expressly bar a divorced Muslim woman from claiming maintenance under section 125 CrPC and that such an interpretation would be regressive, anti-divorced Muslim women and contrary to Article 14 and 15 of the Indian Constitution.

The court therefore held that a divorced Muslim woman would be entitled to seek relief in either or both the laws and that the option would lie with her. This is a welcome step.

AIDWA had several years ago pointed out the loopholes in section 125 of the CrPC, which contains certain regressive provisions. One of them is that if a husband offers to live with his deserted wife and she refuses, it will be left to the discretion of the court to consider the “grounds of refusal.” Similarly, a wife living separately by mutual consent or a wife who has refused to live with her husband without adequate reasons is not entitled to maintenance. In a patriarchal society like ours it is always difficult to prove whether these adequate reasons exist. Further the right to maintenance is a right contingent on the wife’s contribution and work within the household and such a right can’t be defeated by allegations regarding her behaviour after she has been deserted or the marriage has been broken down. However, these provisions have never been critiqued by any court.

The court also didn’t look into the inadequacy of the maintenance amount or restore the Rs 20,000 pm that the women had got from the Family Court. Often the right and entitlement to maintenance becomes meaningless if small inadequate sums are awarded. Women from all the faiths therefore suffer from this inadequacy and the lack of enforcement of maintenance awards by the courts.

Further, the right to maintenance is not adequate to support a deserted or separated woman and it is time that the government recognised women as equal partners in a marriage and entitled to half the assets of the marital home, whenever they exist.