After the furore created by the Supreme Court ruling in 1985 which upheld the rights of divorced Muslim women for maintenance under Section 125 of the Criminal Procedure Code (CrPC),and the subsequent enactment of the Muslim Womens Act of 1986,the idea gained ground that a divorced Muslim womans rights had been extinguished. The popular notion which prevailed at the time,that a Muslim woman is stripped of all rights against her husband beyond the iddat period (three months after the divorce),continues despite several rulings to the contrary. This is because the myriad and unpredictable ways in which the economic rights of Muslim women were reaffirmed during the last quarter-century have not received the attention that they deserved.
The latest in this series is the Supreme Court verdict pronounced by Justices Deepak Verma and Sudarshan Reddy on 4th December,2009. Shabana Bano approached the court for maintenance of Rs 3000 per month; her plea was that when she was pregnant,her husband left her in her natal home with a warning that she would not be allowed to
return after her delivery unless his demands for dowry were met. Hence she was constrained to file a petition for maintenance under Section 125 in the family court at Gwalior. Since the husband pleaded that he had divorced Shabana and hence he is not entitled to pay her maintenance,the court awarded her Rs 2000 per month for the four months between her petition and her divorce. The MP high court dismissed her appeal. It is against this background that the SC upheld her rights.
The gains of this ruling are twofold: it upheld the rights of divorced Muslim women for maintenance under Section 125 and it also upheld the jurisdiction of family courts over maintenance issues of divorced Muslim women. Where social legislations enacted to secure the rights of needy women are concerned,the Supreme Court commented that adherence to rigid rules of procedure and evidence should be avoided. The judges relied upon two earlier rulings: the historic constitutional bench ruling in Daniel Latifi in 2001 and the more recent Iqbal Bano in 2007.
The Daniel Latifi ruling upheld the divorced Muslim womans right to a fair and reasonable settlement as per Islamic principles which would entitle her to claim a lump sum at the time of her divorce. After this ruling,every Muslim woman became entitled to a lump sum at her divorce. The judgment in turn validated several rulings of various high courts which awarded lump sum amounts ranging from Rs 50,000 to Rs 5,00,000 to divorced Muslim women in the intervening years after MWA was enacted in 1986,till the verdict was pronounced in 2001.
It also relied upon the Iqbal Bano ruling of 2007,which held that proceedings under Section 125 are civil in nature. Hence even after the divorce,the woman would be entitled to claim maintenance under Section 125,considering the beneficial nature of the legislation.
Reading these three Supreme Court rulings together,one can surmise the following: first,a divorced Muslim womans right to maintenance (or economic settlement) from her husband is not extinguished upon divorce; second,she has dual claims under Section 125 for recurring main-tenance,or for a lump sum settlement under MWA. Third,while the jurisdiction for MWA is in magistrates courts,where family courts have been set up,divorced Muslim women are entitled to claim maintenance in family courts.
While these are significant rulings capable of a far-reaching
impact,unless they are used in trial court litigation and are used to change social norms within communities they will remain merely ornamental snippets in law journals. Unless all those who are committed or are statutorily bound to protect the rights of Muslim women lawyers,womens groups and social workers are aware of these gains,the judicial pronouncements will cease to have an impact upon their lives,as was the case with Shabana Bano.
Rather ironically,Shabana was married in 2001,after the Daniel Latifi ruling. She had filed for maintenance in March 2004. But sadly,both the family court of Gwalior and the high court did not apply the principles laid down in Daniel Latifi to her case. This resulted in grave economic hardship,and delay in accessing her basic right of maintenance. If ignorance of law is no defence for an ordinary citizen against commitment of a crime,ignorance of accurate legal provisions protecting the rights of the vulnerable and marginalised cannot be a defence for lawyers,judges and conciliators who are duty bound to protect their rights.
The writer is director of Majlis,a legal centre for women,located in Mumbai