The Supreme Court has once again upheld the right of a Muslim woman to seek alimony from her husband under Section 125 of the Code of Criminal Procedure (CrPC). The decision brought back memories of the apex court's landmark judgment in the Shahbano Begum case of 1985. The controversial issue of granting alimony to Muslim women under the secular provision of Section 125 of the CrPC had hit the political corridors in 1985. At that time, in the case of Mohammad Ahmed Khan vs Shahbano Begum, the Constitution Bench had unanimously ruled that Muslim women are also entitled to alimony. Even if there is a conflict between the provisions of secular and 'personal law' regarding the amount of maintenance being sought by a divorced wife, the effect of Section 125 of the CrPC will be paramount.
The Supreme Court bench of Justice BV Nagarathna and Justice Augustine George Masih said in its judgment that the Shah Bano case judgment stated that if a Muslim woman is not able to maintain herself after being given or seeking divorce, she is entitled to seek maintenance from her husband. In this case, the issue of the husband's maintenance obligation towards his wife has been widely discussed. Let us understand the basic aspects of this section and the complexities associated with it from a legal expert.
What is section 125, under which non-payment of maintenance allowance can lead to imprisonment?
Anil Singh Srinet, Supreme Court Advocate in Delhi, says that the Code of Criminal Procedure (CrPC) is secular. The law is secular in criminal cases. Personal law is ineffective in such cases. There is section 125 of the Code of Criminal Procedure. Under this, if the wife is not capable, she can ask for maintenance from her husband. Under this section, a mother can also ask for maintenance from her son. This law is applicable to people of every religion. This includes Muslim women as well, they can ask for maintenance. If the husband refuses to pay maintenance, he will be punished on a monthly basis. That is, the month in which he does not pay maintenance, he will be jailed for 1 month. This will have to be done until the wife of that person divorces him and marries someone else. A Muslim woman can ask for alimony even without divorce. If she feels that her husband neglects her after marrying another woman, she can claim maintenance for herself.
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Why so much aversion towards Uniform Civil Code?
According to Anil Kumar Singh Srinet, any criminal case is the same for all religions. Common Civil Code is applicable in criminal cases. For example, domestic violence cases are also dealt with under criminal cases. Personal law is not valid there either. This law has been there since the beginning. Section 125 of CrPC is a secular section. Since it is a criminal section, Muslims oppose this law in cases of divorce or domestic violence. They fear that with the implementation of Uniform Civil Code, Muslim women will become more empowered and will take their rights through the court.
Muslim women also have the right to alimony, joint accounts and ATM access, SC told how they will get equal status
Section 125 is of criminal nature, personal law is not valid
According to Advocate Anil Singh Srinet, marriage, divorce, division of property, donation or making a will are civil matters. For Muslims, these matters are settled under personal law. That is, Sharia law is applicable in such cases. Since Sharia law is not applicable in India. It is applicable only in civil matters of this community. At the same time, personal law cannot have any effect in criminal cases or semi-criminal cases like domestic violence or cases of criminal nature like divorce. Muslims say that Sharia law should be considered for them in these cases as well.
Many Muslim women have expressed happiness over the Supreme Court's decision on alimony
Why do Muslim men oppose it?
Muslim men oppose the Common Civil Code by saying that our personal law has provision for divorce cases. But, their point cannot be accepted because in future they can demand implementation of personal law in criminal cases as well. The Muslim male community fears that with the implementation of the Uniform Civil Code, Muslim women will become powerful. They can demand alimony. They can send their husbands to jail for domestic violence. Whereas there is no such special provision in Sharia. The arbitrariness of Muslim men will end. They can bring a second wife without paying alimony to the first wife. Whereas Section 125 can curb their arbitrariness. The first wife can demand adequate alimony without giving divorce. She can demand maintenance from her husband even while living with him. Whereas in personal law, the husband is not bound to do so.
Only 6% right on property, how will one survive?
Advocate Anil Kumar Singh Srinet says that women do not have rights even in matters of property in the Muslim community. Currently, according to Sharia, Muslim women have only 6 percent rights in property. The wife gets only 6 percent share in the husband's property. The son's share is 45 percent, while the rest will belong to the daughters and others. In such a situation, if the wife is unable to maintain herself, then what will happen to her 6 percent?
What will change with the Uniform Civil Code
When the Uniform Civil Code comes into force, it will also be applicable in the civil cases of the Muslim community. No one will be able to keep four wives. There will be a ban on having more children. Property disputes will end. Muslim women will also have equal rights in their husband's property. With this decision of the Supreme Court, i.e. Section 125 of the CrPC will be applicable to everyone. This hurts the Sharia law of Muslims.
What does the Muslim Personal Law, 1937 say?
Advocate Shivaji Shukla of Saket Court, Delhi says that the Muslim Personal Law (Sharia) Application Act, 1937 deals with the personal matters of Muslims. Under Islamic law, Muslim women can ask for Nafka i.e. alimony from their husbands. However, there are many conditions for this. Under this law, every divorced Muslim woman whose Nikah has taken place under Muslim law is entitled to get alimony. Nafka includes all expenses like food, clothing and housing. If the Nikah is illegal, irregular, then the husband is not obliged to give Nafka. This is the problem of Nafka against Muslim women.
The importance of Iddat period in Muslim Women Act
Advocate Shivaji Shukla says that many provisions related to maintenance have been made under the Muslim Women (Protection of Rights on Divorce) Act, 1986. According to this law, a Muslim wife has the right to get maintenance during the period of Iddat. That is, the husband's obligation towards his wife remains until the period of Iddat ends. At the same time, if the woman is unable to maintain herself after the period of Iddat ends, she can demand fair and equal maintenance from her relatives, who will be entitled to receive her property after her death.
What is Iddat, its importance in Muslim community
According to Advocate Shivaji Shukla, Iddat or Iddat in Islam is an Arabic word, which has come from there. It simply means the time of waiting. That is, the period after the divorce of a woman or the death of her husband is called Iddat, which is mandatory for that woman to follow. During this period, she cannot marry any other man. Its main purpose is to remove any kind of doubt regarding the paternity of a child born in the event of divorce or after the death of the former husband. Iddat can vary according to the circumstances. In most cases, the period of Iddat of a divorced woman is about 130 days. During this time, that woman is forbidden to marry. If a woman is pregnant after divorce or widowhood, then Iddat continues until she gives birth to a child.
The Supreme Court has advocated for a Uniform Civil Code
The Rajiv Gandhi government tried to clear this confusion by introducing the Muslim Women (Protection of Rights on Divorce) Act, 1986, which aimed to clarify the rights of such women at the time of divorce. The constitutional validity of the 1986 Act was upheld by a five-judge Constitution Bench of the Supreme Court in the Daniyal Latifi case in 2001.
