Secular remedy: On the Muslim woman, maintenance and Court verdict
Parimita Mahanta

In a significant ruling, the Supreme Court of India clarified that divorced Muslim women are not barred from seeking maintenance under the Code of Criminal Procedure (CrPC).
This decision addresses a crucial issue stemming from the aftermath of the 1986 enactment of the Muslim Women (Protection of Rights on Divorce) Act, which was a response to the landmark Shah Bano case (1985).

In that case, the Supreme Court affirmed a divorced Muslim woman’s right to seek maintenance under Section 125 of the CrPC, sparking controversy and debates over religious versus secular law.
The 1986 Act initially appeared to restrict this right, leading to a perception that Muslim women could only access relief through Muslim personal law. However, in 2001, the Constitution Bench upheld the validity of the 1986 Act, interpreting it in a manner that did not completely exclude secular remedies available under the CrPC. Despite this, various High Court judgments continued to offer conflicting views on whether Muslim women should seek relief under Section 3 of the 1986 Act or Section 125 of the CrPC.
The recent Supreme Court verdict by Justices B.V. Nagarathna and Augustine George Masih resolves this ambiguity by affirming that the rights guaranteed under the 1986 Act—including maintenance during the Iddat period, provisions for a dignified life until remarriage, and the return of mehr and dowry—are supplementary to, and do not supersede, the right to seek maintenance under the CrPC.
Justice Masih emphasized the coexistence of personal law provisions and secular remedies, while Justice Nagarathna underscored that the CrPC’s maintenance provisions aim to prevent destitution among women, a societal goal that transcends religious considerations. This ruling ensures that Muslim women have equal access to legal remedies as women of other religions, thereby reinforcing secular principles and advancing gender equality.

The recent Supreme Court ruling has significantly clarified the maintenance rights of divorced Muslim women, emphasizing their ability to invoke both personal law provisions and secular remedies concurrently.
Justice Augustine George Masih, in his main opinion, underscored the coexistence of personal law provisions and secular remedies for seeking maintenance, affirming that the CrPC could be invoked by a woman unable to support herself, while the 1986 Act mandates that Muslim husbands provide for their divorced wives and children to a certain extent.
Justice B.V. Nagarathna, in her concurring opinion, elaborated on the social purpose of the CrPC’s maintenance provisions, aiming to prevent destitution among women by obligating husbands to support their wives.

She highlighted that the 1986 Act codifies specific rights for divorced Muslim women under personal law, complementing rather than superseding rights available under secular law. This verdict demonstrates the Court’s harmonious interpretation to expand rights and secularize access to remedies, effectively dispelling the perception that the 1986 Act extinguished Muslim women’s right to seek maintenance under secular provisions.
The ruling ensures equal access for Muslim women to legal remedies, reinforcing secular principles and advancing gender equality. In doing so, the decision upholds the progressive spirit of the Shah Bano case and strengthens India’s commitment to safeguarding the rights and dignity of all citizens, irrespective of religious affiliations.

13-07-2024
Parimita Mahanta is a student of Communication & Journalism, Gauhati University
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