Opinion Fervour over Allahabad HC verdict on divorced Muslim women’s rights is misplaced
Tahir Mahmood writes: With verdict coming 14 years after appeal was filed, the case also bears testimony to the saying, ‘justice delayed is justice denied’
Remarkably, even high court decisions in such cases sometimes show half-baked knowledge, if not total ignorance, of the settled law and the apex court of the country has to set them aside in the final appeals. (File Photo) 
On April 18, the Lucknow Bench of the Allahabad High Court rightly overruled an appellate court’s decision on the maintenance right of a divorced Muslim woman. The case was a routine one but, strangely, it is being blown out of proportion and enthusiastically commented upon in a section of the media as if it were a novel judicial ruling.
To the well-known legal maxim “ignorance of the law is no excuse”, the late Justice VR Krishna Iyer had once jokingly suffixed the words “except for the lower courts” — since their decisions in disputed cases often go against the relevant law and are overruled by higher courts. The truth of what Justice Iyer had said in a lighter vein is particularly evident in cases under Muslim law. Remarkably, even high court decisions in such cases sometimes show half-baked knowledge, if not total ignorance, of the settled law and the apex court of the country has to set them aside in the final appeals.
In the case under comment, a divorced Muslim woman of Uttar Pradesh’s Pratapgarh district had approached a lower court seeking a maintenance order against her husband under the provisions of the Criminal Procedure Code of 1973 (CrPC). The trial court rightly ruled in her favour. But this decision was appealed against before an additional sessions judge who superseded it, holding that the CrPC law was no more applicable to her and the case should have been decided only under, and in accordance with, the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This decision was then appealed against before the Lucknow Bench of the state high court.
Deciding the appeal, Justice K S Pawar observed that “in view of the judgment of Bano vs Imran Khan rendered by the Supreme Court in 2009 I have no hesitation in holding that the view taken by the revisional court is contrary to the law laid down by the Supreme Court. The revisionist wife, being a divorced Muslim woman, was entitled to claim maintenance under Section 125 CrPC.”
Justice Pawar was referring to the Shabana Bano v Imran Khan case. Details of the case can be found in the law reports of 2010. This was neither the first nor the last apex court decision affirming the continued application of the CrPC law on providing maintenance to divorced Muslim women, irrespective of the Muslim Women Act of 1986. In fact, the main issue in this case was the jurisdiction of family courts to entertain and decide cases under the said Act which mentions a magistrate’s court as the forum for its purposes. Justice Dipak Misra said in his judgment that “the basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the CrPC and, if yes, then through which forum.”
Before this appeal was decided, the law on the maintenance liability of Muslim men towards their divorced wives had been already settled by the apex court in several verdicts. Hence in Shabana Bano, Justice Misra just said that “a cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (2001) and Iqbal Bano (2007) makes it crystal clear that a divorced Muslim woman would be entitled to claim maintenance from her divorced husband as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.” The last sentence in this observation in Shabana Bano is being ignorantly attributed in the media to the Lucknow judge, Justice KS Pawar.
On the other point mentioned in the prefatory observation in Shabana Bano, Justice Misra had held that “a bare perusal of Section 20 of the Family Courts Act makes it crystal clear that the provisions of this Act shall have an overriding effect on all other enactments in force dealing with this issue” — and he was absolutely right. All family law statutes originally mentioned district courts as the forum for entertaining and deciding the cases arising under their provisions. By virtue of the Family Courts Act 1984, their jurisdiction automatically got transferred to family courts.
In the Lucknow case we are discussing here, a lower-level appellate court’s incorrect decision had been appealed against in 2008. It was disposed of by the high court a good 14 years later. The case thus also bears testimony to the saying, “justice delayed is justice denied”, which remains the order of the day in judicial settlement of family disputes. The fervour over the case in media reports is misplaced.
This column first appeared in the print edition on April 23, 2022 under the title ‘Correcting a wrong, belatedly’. The writer is professor of law and ex-member, Law Commission of India
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