Samaan Shekhar
On July 10, 2024, the Supreme Court of India, in Mohd Abdul Samad vs State of Telangana declared that Muslim women can seek maintenance after divorce under Section 125 of the Code of Criminal Procedure (CrPC). This momentous decision has far-reaching implications, not limited to the domain of maintenance after divorce. However, before we discuss about those far-reaching implications, let us first see what it entails for the rights of Muslim women on divorce.
Interpreting the non-obstante clause in the provision relating to maintenance in the Muslim Women (Protection of Rights on Divorce) Act 1986, the Supreme Court emphasised the ‘co-existential’ aspect of the meaning of the non-obstante clause and said that different provisions on the same issue containing non-obstante clauses can co-exist. It accordingly ruled that the protective provision of maintenance in a secular law (CrPC) is available to Muslim divorced women, in addition to the protection they have under the specific (personal) law.
The story that seems to have come to a rest by this Supreme Court judgement had a beginning in the very portals of the Supreme Court nearly four decades ago. In Shah Bano case, in 1985, the court ruled that Muslim women have the right to claim maintenance even after the period of iddat (period of wait before which a divorced Muslim woman could not remarry), under section 125 of CrPC. While this was seen by many as a great relief to Muslim women, the orthodoxy among Muslims viewed it as an attack on their personal laws. In the wake of the uproar, led primarily by the orthodoxy, the then government came up with Muslim Women (Protection of Rights on Divorce) Act, 1986. Section 3 of the Act that began with the non-obstante clause ‘notwithstanding anything contained in any other law’ provided for maintenance to divorced Muslim women only during the period of iddat. After the period of iddat, the responsibility of paying maintenance to the divorced woman was put on those relatives who were to inherit her property. Thus, this Act left the divorced Muslim woman to the mercy of her relatives beyond the period of iddat.
For close to a decade and a half, various lower courts gave varying and contradictory judgements in the matters of maintenance of divorced Muslim Women; some granting maintenance under section 125 of CrPC and some refusing to do so, citing the existence of a specific law with non-obstante clause. In 2001, in Daniel Latif Vs Union of India, the Supreme Court, while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, gave a meliorating interpretation of the said provision of maintenance under the period of iddat. Interpreting that the words ‘reasonable and fair maintenance’ mean that the maintenance should cover the future (beyond the period of iddat) needs of the woman. The court also held that the legislature cannot intend to make an unconstitutional law and hence the provisions of Muslim Women (Protection of Rights on Divorce) Act, did not take away a Muslim woman’s right to seek maintenance under CrPC. The Supreme Court reiterated the stand in Shabana Bano Vs Imran Khan (2010).
Despite the remarkable consistency in the co-existential interpretation of the provisions in the personal and secular (CrPC) laws governing the maintenance to the divorced Muslim women, lower courts continued to exhibit confusion and adversely affected parties did not relent and kept taking matters to higher courts. With the emphatic declaration by the Supreme Court in its latest judgement in Mohd Abdul Samad case, we may rest assured that this issue is settled for good.
However, the principle that the personal laws and secular laws governing the same matter can coexist and may be resorted to as a matter of choice, gives rise to some significant possibilities. This principle, if applied in the case of Uniform Civil Code can have far reaching implication with regard to the very possibility of having such a code. However, before diving in to explore such possibility, it is indeed in order to have a look at its broader context.
Unlike many countries, India faces a peculiar problem in terms of making laws that govern personal matters of people such as marriage, divorce, maintenance, succession, adoption, etc. There are several personal laws that apply to a specific religion (such as Muslim Personal Law (Shariat) Application Act 1937 that applies to Muslims) or a group of religions (such as Hindu Succession Act, 1956 that applies to Hindus, Buddhists, Jains and Sikhs). At the same time, there are ‘secular’ laws that apply to all citizens irrespective of their religion (such as The Special Marriage Act, 1954). To have a Uniform Civil Code that would govern personal matters of all citizens, irrespective of their religion, has been a contentious and long-pending issue, despite the fact that the state has been mandated to ‘endeavour to secure for the citizens a uniform civil code throughout the territory of India’ as per Article 44 of the Indian Constitution.
First notable effort in this direction was made by Dr Ambedkar in 1947, when he introduced the Hindu Code Bill in the Constituent Assembly which also had legislative role as an interim Parliament. The Hindu Code Bill sought to bring about gender equality and protect women’s rights in personal matters such as marriage, divorce, maintenance, inheritance, etc. The bill covered all Hindus, defined perhaps in the widest possible way, not limiting it to Hindu religion. It covered those who professed Hindu religion, other religions such as Jainism, Buddhism and Sikhism, and excluded Muslims, Christians, Jews and Parsis. The bill became one of the longest-debated bills in the Constituent Assembly (more than four years) but failed to see the light of the day due to the stiff opposition from the orthodoxy, leading to the resignation of the disappointed Dr Ambedkar. However, he succeeded in mandating the state to bring Uniform Civil Code in future by making it part of the Directive Principles of State Policy in the Constitution.
Most of the provision of the unborn Hindu Code were later incorporated in the laws passed in mid 1950s, such as Hindu Marriage Act 1955, Hindu Succession Act 1956, etc. The post-Ambedkar efforts to bring a wider civil code in the form of a Uniform Civil Code, covering all the citizens living in the territory of India, have been inconsistent and checkered. So much so that the current ruling party at the centre, having avowed to bring in a Uniform Civil Code, could not make much headway during its last ten years of almost unbridled legislative and political power. The Prime Minister, with much less fuel in his legislative tank in his consecutive third term, reiterated the ambition of secular(sic) Uniform Civil Code from the ramparts of the Red Fort on the occasion of 78th Independence Day. With its proven inability to take along the opposition on crucial legislative matters, it is indeed going to be an arduous task for the government, given the newly acquired vigour of the opposition amalgam. The party in power is likely to face equally tough challenge from within its ranks, due mainly to the lack of clarity on the contents of this long-awaited code.
A Uniform Civil Code that brings gender equality, protects the interests of the vulnerable and weak sections of society, brings uniformity and seeks to promote national integration is of course welcome. However, whether one is in favour of a Uniform Civil Code being proposed by the current dispensation, is not a simple question that can be answered in yes or no. The answer would entirely depend on the contents of the code. Even the intelligentsia that is, in principle, in favour of a Uniform Civil Code is sceptical to answer the question without having a look at the actual provisions of the code, thanks to the seeds of doubts the party in power has sown in the minds of people through its opaque, unilateral, surreptitious and high-handed approach to law making in the past years. On as crucial and sensitive an issue as this, the government would do much better to come up with a draft code, put it in public domain and take the political parties, various religious bodies, civil society and the larger public in confidence. The remarkably undemocratic and surreptitious approach adopted by the ruling party in passing certain crucial legislations in parliament without any reasonable notice and without any debate and discussion would prove disastrous if resorted to for bringing such a code.
It is expected that there would be opposition from the orthodoxy (or vested interests)of all religions to any secular uniform provisions which go against their personal laws or religious beliefs (or their interpretations). The basic argument of such opposition is that a uniform code will interfere with their personal/religious matters, render their personal/religious laws dead, violet their right to freedom of religion, etc. In such a situation, the application of the principle of co-existence of the secular Uniform Civil Code and personal laws of various religions can create a new possibility. As per this principle, a Uniform Civil Code can be brought in without necessarily doing away with the extant personal laws, with a choice available to people to invoke either the provision of Uniform Civil Code or their personal law(s). People will be at liberty to choose the Uniform Code or personal law depending on what they find more beneficial for them. This arrangement would blunt the arguments of those who oppose the Uniform Civil Code and pave way for it. In any case, a Uniform Civil Code will justify its existence only if it protects the weaker sections (women, children, old, etc.) better than their respective personal laws and adheres more to the ideals of the constitution. People will gradually adopt the Uniform Civil Code while the personal laws recede to the background, with respect to the matters covered in such uniform code. In the long run, the Uniform Civil Code will also evolve, with its ability to meet newer aspirations and needs of people, becoming the mainstay vis a vis the rigid personal laws which are unlikely to cater to such changing needs and aspirations.
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Samaan Shekhar is a former IAS Officer who currently works on social, gender and environmental issues, PILs and Policy Advocacy)
