Judges: G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra., Doraiswamy Raju and Shivaraj V. Patil

Facts:

Shah Bano, a Muslim woman from Indore, Madhya Pradesh, and mother of five, was divorced from her husband in 1978. She filed a case under Section 125 of the Code of the Criminal Procedure,1973 (hereinafter referred to as CrPC).

The Supreme Court ruled in her favor and upheld the right to alimony for Muslim women. When the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986((hereinafter referred to as MWPRD Act, 1986) to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto; which effectively invalidated the decision in the Shah Bano case, she was denied maintenance.

According to Section 3(1) of the MWPRD Act, 1986 divorced Muslim women were entitled to reasonable and fair maintenance during the "Iddat" period, but they were not entitled to subsequent or future maintenance from their ex-husbands.

Shah Bano's counsel, Danial Latifi, filed a writ petition in the Supreme Court challenging the constitutional validity of the Act, claiming that since a wife who was dependent on her husband prior to marriage has a right to life even after marriage and with the view that this Act violates Articles 14,15, and 21 of the Indian Constitution, as well as contesting that the Act being less beneficial than Section 125 of the CrPC, by denying divorced Muslim women the same maintenance benefits as other divorced women.

Issues:

(i) Whether Muslim women can take recourse under Section 125 CrPC?

(ii) Whether the Muslim Women (Protection of Rights on divorce) Act, 1986 is unconstitutional in light of Articles 14, 15 and 21 of Constitution?

Laws:

Criminal Procedure Code - Section 125 -States to provide maintenance to the wife irrespective of religion.

Muslim Women (Protection of Rights on Divorce) Act, 1986- Section 3 - States to provide maintenance to the wife till the iddat period.

Constitution of India - Article 14 -States for Right to Equality;

Constitution of India - Article 15 -Right to not get discriminated based on Religion, Race, caste, sex or Place of Birth;

Constitution of India - Article 21 - States for Right to life.

Contentions:

Petitioner

(i) Section 125 CrPC is part of the Criminal Procedure and not a civil law, which defines and governs rights and obligations of the parties belonging to a particular religion like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act.

(ii) Section 125 CrPC, was enacted in order to provide a quick and summary remedy. The basis there being, neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves, these provisions have been made the moral edict of the law and morality cannot be clubbed with religion.

(iii) The rationale of Section 125 CrPC is to offset or to meet a situation where a divorced wife is likely to be led into destitution or vagrancy. Section 125 CrPC is enacted to prevent the same in furtherance of the concept of social justice embodied in Article 21 of the Constitution.

(iv) Section 125 CrPC is a provision made in respect of women belonging to all religions and exclusion of Muslim Women from the same results in discrimination between women and women.

(v) Apart from the gender injustice caused in the country, this discrimination further leads to a monstrous proposition of nullifying a law declared by this Court in Shah Bano's case. Thus there is a violation of not only equality before law but also equal protection of laws and inherent infringement of Article 21 as well as basic human values.

(vi) The Act is an un-islamic, unconstitutional and it has the potential of suffocating the muslim women and it undermines the secular character, which is the basic feature of the Constitution;

Respondent

(i) Under Section 3 of the Act, it is provided that a reasonable and fair provision and maintenance to be made and paid by her former husband within the iddat period makes it clear that it cannot be for life but would only be for a period of iddat and when that fact has clearly been stated in the provision then the question to interpretation as to whether it is for life or for the period of iddat doesn't arise.

(ii) Challenge raised in this petition is dehors the personal law. Personal law is a legitimate basis for discrimination, if at all, and therefore, does not offend Article 14 of the Constitution.

(iii) Parliament can amend Section 125 CrPC so as to exclude them and apply personal law and the policy of Section 125 CrPC is not to create a right of maintenance dehors the personal law.

(iv) In Shah Bano's case, it has been held that a divorced woman is entitled to maintenance even after the iddat period from the husband and that is how Parliament also understood the ratio of that decision. To overcome the ratio of the said decision, the present Act has been enacted and Section 3(1)(a) is not in discord with the personal law.

(v) TheActcannot beheld as discriminatory ifa separate law is passed for a separate community.

(vi) The MWPRD Act, 1986 resolves all issues, bearing in mind the personal law of Muslim community and the fact that the benefits of Section 125 CrPC have not been extended to Muslim women, would not necessarily lead to a conclusion that there is no provision to protect the Muslim women from vagaries and from being a destitute; that therefore, the Act is not invalid or unconstitutional.

Analysis:

Muslim women can take recourse under Section 125 CrPC

(i) According to the SC, Section 125CrPC is secular in origin and has nothing to do with personal law. It was enacted for quick maintenance and to prevent destitution and vagrancy. According to Justice Chandrachud, "personal law (Shariat) could not override the constitutionally framed law (Section 125 CrPC). Therefore, a Muslim woman, who is unable to maintain herself, can demand maintenance from her husband even after the iddat period. The husband is legally bound under Section 125 of the CrPC to pay maintenance."

(ii) The exclusion of Muslim women from Section 125 of the CrPC will constitute discrimination because it is a provision for women of all religions.

Constitutionality of MWPRD Act, 1986 - Articles 14,15 and 21 of Constitution

(i) While interpreting the provision of Sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable. provision for her future being made by her former husband which must include maintenance for future extending beyond the iddat period. It was held that the liability of the former husband to made a reasonable and fair provision under Section 3(1)(a) of the Act is not restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the iddat period.

(ii) The MWPRD Act passed in 1986 is valid. The provisions of the Act do not conflict with the principles of the Indian Constitution. The Act and the Code of Criminal Procedure were balanced by the court. It brought back the principles of the Shah Bano case, that the husband's obligation to support his wife did not end with the iddat period.

(iii) Even under the Act the parties agreed the provisions of Section 125 of CrPC would still apply and even otherwise. In addition, the Magistrate has the authority to order appropriate maintenance arrangements, so anything that could have previously been granted by a Magistrate under Section 125 of CrPC would now be granted by the Act itself. Given this, it cannot be argued that the Act is unconstitutional and is violative of Articles 14,15 and 21 of the Constitution.

Conclusion:

(i) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

(ii) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.

(iii) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

(iv) The provisions of the Act do not offend Articles 14 15 and 21 of the Constitution of India.

Important Precedents:

(i) Mohd. Ahmed Khan v. Shah Bano Begum &Ors., MANU/SC/0194/1985

(ii) Bai Tahira v. Ali Hussain FidaalliChothia MANU/SC/0402/1978

(iii) Aga Mahomed Jaffer Bindaneem v. Koolsom Bee Bee&Ors

(iv) Olga Tellis v. Bombay Municipal Corporation MANU/SC/0039/1985

(v) Maneka Gandhi v. Union of India MANU/SC/0133/1978