The Supreme Court's decision on alimony for Muslim women is a very big one. If Rajiv Gandhi were alive today…

Ananya Shroff
8 Min Read

New Delhi: The Supreme Court today dealt a major blow to a highly controversial law made during the tenure of former Prime Minister Rajiv Gandhi. The country's top court has ruled that divorced Muslim women are also entitled to demand alimony under Section 125 of the Code of Criminal Procedure (CrPC). The Rajiv Gandhi government had made a new law to overturn a similar order of the Supreme Court in the Shah Bano case. Today, the Supreme Court broke the limits of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and said that a woman, irrespective of her religion, has the right to demand alimony from her husband if her marriage breaks down. When the Supreme Court declared a Muslim woman named Shah Bano entitled to receive alimony from her husband, the then Prime Minister Rajiv Gandhi bowed to the anger of the Muslim community and got the said law passed by the Parliament.

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Section 125 of CrPC applies to all religions

In the latest case, the Supreme Court said that Section 125 of the CrPC applies to women of all religions, that is, it is a secular provision. The court has clearly stated in its decision that this decision will apply to women of every religion and Muslim women can also resort to it. For this, they have the right to file a petition in the court under Section 125 of the CrPC. Supreme Court Justice BV Nagarathna and Justice Augustine George Masih have given this decision. The court had reserved the decision in this case on February 19.

A case like Shahbano came before the Supreme Court

Actually, this whole case is related to a person from Telangana, Abdul Samad and his divorced wife. The family court had asked Abdul Samad to pay alimony of Rs 20,000 per month. Samad challenged this in the Telangana High Court. Then the High Court reduced the alimony amount by half to Rs 10,000 per month. Samad was still not satisfied and went to the Supreme Court against the decision of the High Court.

Reference to the 1986 law

In his petition, he claimed that a Muslim woman, and in this case his divorced wife, is not entitled to seek alimony under Section 125 of the CrPC. In the Supreme Court, Samad's lawyer Wasim Qadri argued that in fact the Muslim Women Act, 1986, brought by Rajiv Gandhi's government, is much more beneficial to the interests of a divorced woman than Section 125 of the CrPC. Had Rajiv Gandhi been alive today, the Supreme Court's latest decision would have echoed more. The media would have sought his reaction and the opposition would have been aggressive.

Petitioner claims- 1986 law is better than CrPC

Qadri said that Section 3 of the Muslim Women Act, 1986 has provisions related to mehr, dowry and return of property and it is more beneficial for any Muslim woman. He said that there are lifetime 'fair and reasonable' provisions for Muslim women under the 1986 law, which is not there under Section 125 of the CrPC. Samad's counsel also argued that a divorced woman who is capable of maintaining herself cannot seek alimony under Section 125 of the CrPC, while the 1986 law gives the right to even a capable woman to seek alimony from her former husband.

CrPC is also applicable on Muslim women

In response to this, amicus curiae Gaurav Agarwal told the Supreme Court that Muslim personal law cannot take away a woman's right to get relief under the CrPC. The Supreme Court bench accepted the argument of the amicus curiae and dismissed Abdul Samad's petition and upheld the decision of the High Court.

Rajiv government had brought a law to overturn the Shah Bano case

The Supreme Court itself had said in 1985 in the Shah Bano case that Section 125 of the CrPC applies to everyone, irrespective of their religion. But Rajiv Gandhi's government made and implemented the 1986 law to stop the Supreme Court's decision. The new law said that after divorce, a Muslim woman is entitled to alimony only for 90 days of Iddat. The Supreme Court also approved this law in 2001.

Supreme Court stated the responsibility of the ex-husband

But now the bench of Justice Nagarathna and Justice Masih has made it clear that Section 125 of the CrPC is a secular provision over which no personal law can prevail. That is, the law brought by the Rajiv Gandhi government for the Muslim community has been clearly set aside. The bench also said that until the woman remarries or becomes capable herself, it is the responsibility of her ex-husband to bear the expenses of her maintenance.

Alimony is the right of a divorced woman: Supreme Court

The court clarified that bearing the cost of alimony is not a pity but the right of the divorced woman. Justice Nagarathna said, 'Some husbands do not know that their wives who are housewives are dependent on them emotionally and in other ways too. The time has come that Indian men should understand the role of housewives and their sacrifices.'

Now what will happen to the 1986 law?

The Supreme Court also said in the Abdul Samad case that if the petition is being heard under Section 125 of the CrPC, then during this time relief can also be sought under the Muslim Women (Protection of Marriage Rights), 2019. The court said that if a Muslim woman demands protection from both the laws, then she can be given protection from both the laws. In this way, Muslim women have got the right to get protection from all three laws, CrPC, 1986 and 2019. If a Muslim woman is not satisfied with the alimony received under the 1986 law, then she can also demand expenses under the CrPC. Meaning that the 1986 law has not been repealed, it also remains in its place.

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