Will SC’s judgement on maintenance for divorced Muslim women be applicable on the Bharatiya Nagarik Suraksha Sanhita?

How SC shaped personal laws of Muslim women?

On July 10, the Supreme Court ruled that a Muslim woman can seek maintenance from her husband under section 125 of the Code of Criminal Procedure (CrPC), which is applicable to all married women irrespective of religion.

Section 125 of CrPC dealt with the power of dependants to ask for maintenance and the power of the court to grant the same.  According to the section, if any person having sufficient means neglects or refuses to maintain—

(a) his wife (who is unable to maintain herself)

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, but by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

The magistrate has the powers to order the person to pay a monthly maintenance.

This judgement, which comes 39 years after SC’s earlier landmark pronouncement on the same subject , is also considered landmark as it authoritatively ruled that the criminal procedure code is a secular law and applies to all women. The bench said maintenance is not charity but the right of married women and it is applicable to all married women irrespective of their religion.

The judgement has also raised some eyebrows among Muslim clerics as Sharia law is considered the Muslim personal law and it governs aspects such as marriage and inheritance.  In India, personal laws depend on the religion a person follows. For instance, the marriage of Hindus, Christians, and Parsis is governed by the Hindu Marriage Act, the Indian Christian Marriage Act, and the Parsi Marriage Act, respectively. Muslims follow the Muslim Personal Law (Shariat) Application Act, 1937.

The new criminal laws came into effect in the country on July 1. The three laws were approved by Parliament during the winter session of 2023 and received the President’s assent on December 25, 2023. The Bharatiya Nyaya (Second) Sanhita, 2023; Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and Bharatiya Sakshya (Second) Bill, 2023, have replaced the Indian Penal Code (1860), the Criminal Procedure Code, and the Indian Evidence Act.

As a result of this, the Criminal Procedure code is no longer in effect. A question that looms over the judgement is whether it will be applicable on the BNSS since the judgement has come in response to a case filed when the CrPC was still in effect.

“The judgement has come on the basis of the provisions of CrPC, since the case was filed when the same was in force.  Now that the new laws have been enforced, the citizens will be governed by the new laws. However, it is to be noted that what the judgement talks about essentially is the right of a woman to maintenance from her husband. The same shall be equally applicable once the new laws are in place. Notably, Section 144 of the BNSS corresponds to Section 125 of the Cr.PC, retaining the essence of the previous section,” said Ekta Rai lawyer at the Delhi High Court.

Rai noted that since the judgement speaks on the larger question of the rights of Muslim women, the court need not clarify if it would be applicable with BNSS as well.

Shiv Sapra, partner at Kochar and Co said “The BNSS provides for similar provisions regarding maintenance. Section 144 of the BNSS in this regard is very similar to Section 125 of the Cr.P.C. Even if the decision is not 'technically' binding upon cases instituted on/ after July 1st 2024 (having been passed under a repealed statute), it should carry more than just a persuasive value given the stark similarities between the two provisions.”

Rishi Sehgal, Advocate-On-Record, Supreme Court of India noted that the judgements of the Supreme Court on Section 125 CrPC will act as guiding force to section 144 BNSS, thus it could in a way be made applicable to the new law as well. “This means that the judgments passed by the Supreme Court interpreting Section 125, will hold significant weight in deciding similar cases under the new BNSS framework,” he said.

“The Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the existing Section 125 of the Code of Criminal Procedure (CrPC), 1973, both provide for the maintenance of wives, children, and parents irrespective of religion,” said Anushkaa Arora, Principal & Founder, ABA Law Office. She thus noted that divorced Muslim women are also entitled to the recourse available under the new law, i.e., Section 144 BNSS. Both these sections under the CrPC and BNSS are 'religion-neutral' provisions and are applicable to all married women irrespective of their religion.”

This is, however, not the first time the apex court made a pronouncement on applicability of secular legislations on Muslim women.

How Supreme Court played a key role in granting right to maintenance of Muslim women

Shah Bano judgment (1985): The case pertained to the maintenance of a 62 year old woman called Shah Bano. Her husband refused to pay any sum as maintenance as it is not provided for in the Sharia law.  A five-judge bench of the Supreme Court ruled that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself. The judgement said "After referring to the Quran, holding it to the greatest authority on the subject, it held that there was no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.”

Muslim Women (Protection of Rights on Divorce) Act 1986: The Shah Bano judgement created quite a political stir in the country. Many Muslim rights groups protested against the judgement as they viewed it as an interference in their personal rights. The government thus decided to dilute the implications of the judgement by enacting a law. According to the law, a  divorced Muslim woman is entitled to reasonable and fair provision and maintenance from her former husband, and this should be paid within the period of iddat. Iddat is a probationary period wherein a widowed or a divorced Muslim woman is not allowed to remarry. Furthermore, when a Muslim divorced woman is unable to support herself after the iddat, the magistrate can order a maintenance to be paid to her by her relatives, who may inherit her property after her death.

How SC played a key role in granting right to maintenance of Muslim women

Danial Latif case: The constitutional validity of Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged in the Supreme Court in this case. The judgement, which came in 2001, set aside the portion of the act which restricted payment of maintenance during the iddat period. The judgement held that that the obligation to provide maintenance for Muslim women should not strictly end after 'iddat' and such financial support is due to them from their former husbands beyond this time period as well, as long as the marriage existed at some point.

Noor Sabha Khatoon case: The judgement held that the children of Muslim parents are entitled to claim maintenance under Section 125 Cr. PC till they attain majority or are able to maintain themselves, whichever is earlier. According to the judgement, females are entitled to maintenance till they get married, and this right is not restricted, affected or controlled by the divorcee wife’s right to claim maintenance for maintaining the infant child/children in her custody.

Shamim Bano case:  In the Shamim Bano case, the Supreme Court held that a Muslim woman is entitled not only to Mahr (a sort of dowry given before wedding), ornaments, and maintenance under Section 3 of the Muslim Women Protection Act but also to maintenance for the post-Iddat period as the same has not been provided in the order granting Mahr. Thus, the SC held that Section 125 of the Code is maintainable in addition to a plea under Muslim women protection act.

Shaira Bano judgement:  In 2017, the Supreme Court struck down the practice of giving triple talaq. A Muslim man could utter the word ‘talaq’ thrice and divorce his wife instantly. This practice was challenged in the apex court, the court formed a five-judge constitution bench to decide on the issue. In August 2017, the court held that practise un-Islamic and “arbitrary” and disagreed with the view that triple talaq was an integral part of religious practice.

In addition to these cases, the SC is also expected to hear a case called Sameena Begum Vs Union of India. This case challenges the validity of Muslim personal laws, especially since it does not restrict polygamy in India, while other personal laws do.