K.V. Seetharamaiah
The Supreme Court has reiterated that Muslim women are entitled for alimony from their ex-husbands like non-Muslim women. It is correct that religion should not matter.
Liability to give maintenance to the ex-wives by the men has not caused significant dent in the instances of divorce.
If men are freed from the liability of their obligation to pay the maintenance amount to the divorced wife, divorces cases increase beyond imagination.
Under Muslim Law, the alimony is paid to the divorced woman for the iddat period. The iddat period is 3 months and 13 days.
Muslim men can wash their hands by paying alimony only during iddat period. This easy-going spurs more number of divorce cases.
The impact of divorces cases is more pronounced if the husband and wife fall apart after the children are born. The plight of children to keep away from either father or mother would be miserable.
The Supreme Court has stated that a divorced Muslim woman is entitled to seek maintenance from her husband under Section 125 of the Criminal Procedure (CrPC). Justices B.V. Nagarathna and Augustine George Masih have rejected the argument that the Muslim Women (Protection of Rights and Divorce) Act 1986 enacted after the Shah Bano judgment will prevail over the secular law.
In the event of conflict between the personal law and the secular law, the secular law prevails, or has to prevail over the personal laws.
The apex court has declared in unambiguous terms that Section 125 of the CrPC applies to all married and divorced women irrespective of the religion.
Women who have married under Special Marriages Act are not precluded from the entitlement of alimony. It has been held that there cannot be disparity in receiving maintenance on the basis of the law under which a woman is married or divorced.
Justice Nagarathna underlines the need for financial stability and empowerment of married women in her judgment upholding the rights of divorced Muslim women to seek maintenance.
She lays emphasis for protecting financial security and security of residence for women empowerment.
The top court makes it abundantly clear that the rights seeking maintenance under Section 125 of CrPC are in addition to and not in lieu of the rights granted under the 1986 Act. The question arises as to what has a divorced Muslim woman to do for the rest of her life if maintenance is paid to her for only iddat period.
It may be recalled that the judgment delivered by the Supreme Court in the Shah Bano case was annulled by the 1986 Act.
The Act allowed entitlement to Muslim women ‘reasonable’ and ‘fair provision and maintenance’ from her husband within the period of iddat. The question ‘what is reasonable and what is fair’ remains unanswered.
The Act is believed to have been passed for nullifying the effect of Shah Bano judgment where the Supreme Court delivered its judgment in favour of Shah Bano with regard to the payment of maintenance.
The argument of Mohd Ahmed Khan, husband of Shah Bano that the letter ceases to be his wife and hence not liable to pay maintenance and under Islamic law is turned down by the Supreme Court.
The court rules in favour of Shah Bano. The passing of the 1986 Act did not give substantial relief to the divorced Muslim woman.
It upheld the Muslim personal law only. The Rajiv Gandhi government is said to have passed the law with an eye on Muslim vote bank. It is ridiculous to think that the retention of the Muslim personal law in a different form could fetch votes.
If opposition to pay maintenance amount beyond iddat period is opposed by the Muslim men, continuance of alimony beyond iddat period is likely to be welcomed by the Muslim women.
The loss of Muslim men votes is compensated by the gain of Muslim women votes.
The annulment of Supreme Court judgment in the Shah Bano case could not benefit substantially.
The Supreme Court has also ruled that a woman in live-in relationship is also entitled for maintenance if the relationship strains and the man and woman in live-in relationship fall apart.
Live-in relationship has been recognized to be a valid marriage by the Supreme Court if the man and woman live together for a long time. What is ‘long time’ has not been defined.
The alimony is fixed by the court depending upon the merits of the case. It would be in fairness of things if the income of the man is divided by the number of members at the time of divorce and the dividend is distributed equally among the members at the time of grant of divorce.
In doing so, all the men think many times before seeking divorce.
Divorce cases bring misery not only to the husband and wife but also to the parents and children of the divorced couples. Divorce should be more an exception than a norm.
