A few days ago, a Single Judge of the Lucknow Bench of the Allahabad High Court ruled that a divorced Muslim woman is entitled to claim maintenance from her former husband under Section 125 of the Criminal Procedure Code, 1973, even after the expiry of the period of iddat as long as she does not remarry. Justice K. S. Pawar allowed the revision application of the petitioner namely Razia and reversed the order passed by the Additional Sessions Judge, Pratapgarh in May 2008. The High Court modified the order passed by the Judicial Magistrate’s court in favour of the petitioner in January 2007. Though justice is delivered, it is certainly a delayed justice. Unfortunately, the High Court took 14 years to decide the issue. This is the pathetic state of affairs of our judicial system. Something must be done to deliver speedy justice to the people otherwise they will lose faith in our judicial system.
Public opinion seems to be divided on this issue. While several constitutional pundits, scholars, thinkers and commentators have appreciated the High Court’s verdict, there are also people who take a different view about this judgment. I am of the view that the judgment delivered by the Lucknow Bench is absolutely correct and needs no overruling or public criticism. The judgment is based on sound statutory principles, and case laws decided by the Apex Court. Let me analyze this ruling in light of the well-established law of precedent on the issue of maintenance for Muslim women.
In this case, the petitioner is a divorced lady who had approached the Court of the Judicial Magistrate, Pratapgarh under Section 125 of the Criminal Procedure Code, 1973 and requested the Court to grant maintenance for her and her two kids. The Trial Court allowed her application in 2007 and asked her husband to give the petitioner and her kids monthly maintenance. Thereafter, the petitioner’s husband filed a revision application before the Court of Additional Sessions Judge (ASJ), Pratapgarh, who allowed the application, and rejected the maintenance order passed in favour of the petitioner. The ASJ also reduced the maintenance of two kids. While allowing the revision application of the husband, the Additional Sessions Judge observed, relied on the judgment of the Supreme Court delivered in the Danial Latifi case of 2001, that the matter of maintenance of a divorced Muslim wife was covered by the Muslim Women (Protection of Rights on Divorce) Act, 1986, and not by Section 125 of the Criminal Procedure Code. Aggrieved against the ASJ’s order passed in May 2008, the petitioner approached the High Court in appeal and challenged the findings delivered by the Additional Sessions Judge, Pratapgarh.
In appeal, a Single Bench of the Allahabad High Court headed by Justice K. S. Pawar set aside the order passed by the Additional Sessions Judge, Pratapgarh, and held that the petitioner is entitled to get the benefit of Section 125 of the Criminal Procedure Code, 1973. While saying so, the High Court relied on the judgment of the Supreme Court delivered in the case of Sabana Bano v. Imran Khan, (2009) wherein the Apex Court had ruled: “cumulative reading of the relevant portions of the judgments of this Court in Danial Latifi and Iqbal Bano would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a piece of beneficial legislation, the benefit thereof must accrue to the divorced Muslim women”. Further, the Court observed that even after divorce, a Muslim woman is entitled to claim maintenance from her husband under section 125 of the Criminal Procedure Code, 1973, after the expiry of the iddat period as long as she does not remarry.
Applying the Apex Court’s judgments, Justice K. S. Pawar rightly observed in his judgment: “In view of the aforesaid judgment of Sabana Bano, I have no hesitation in holding that the view taken by the revisional Court is contrary to the law laid down by Hon’ble Supreme Court. The revisionist no. 1 being a divorced Muslim woman was entitled to claim maintenance under Section 125 of the Cr.P.C. There is no illegality in the order passed by the Trial Court”. This is a good judgment which will benefit several divorced Muslim women who are deprived of maintenance by their former husbands getting the cover of the 1986 Muslim Act, an Act enacted by the Congress government to appease Muslims after the Shah Bano verdict of the Supreme Court. The time has come when Parliament should repeal the 1986 Act, and enact the Uniform Civil Code to protect the dignity of women. In a democracy based on the supremacy of the Constitution, there is no place for religious fundamentalism and anti-women interpretations by Islamic Maulvis, Muftis, and Mullahs. In India, the Constitution is the supreme law of the land, not the Sharia. Thankfully, during the last few years, the judiciary has come to the rescue of Muslim women in several cases. The abolition of the unsavory practice of triple divorce is one of them. But more efforts are required to bring gender equality in the Islamic community which needs urgent social reforms. Some Muslim scholars, leaders, and public intellectuals should also come forward to criticize such practices and convince the community to accept the common civil code.
Let me conclude this note with these insightful words of the Supreme Court observed in the Shah Bano case in 1985: “A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case”.
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