Muslim women and the law

By Sona Khan

THE GOVERNMENT'S decision to introduce a Bill in Parliament to amend legal provisions to enable women and other dependents to seek higher maintenance is a welcome move. But, alas! The announcement did not mention the inclusion of Muslim women under the scheme of these proposed amendments, though other Indian women would be included. Why? If the explanation is that the validity of the legislation dealing with the rights of Muslim women passed after the decision in the Shahbano case, the Muslim Women (Protection of Rights on Divorce) Act, 1986, is pending in the Supreme Court, it is unacceptable. The 1986 Act deals with only the question of maintenance of divorced Muslim women and not undivorced. The exclusion of divorced Muslim women from benefits available to other divorced women under secular provisions is discriminatory and, therefore, untenable. I challenged the validity of the 1986 Act and filed a public interest petition personally before the Supreme Court in 1986 itself. I have challenged it on the grounds that the enactment is prima facie unconstitutional on several counts, it is not in conformity with the settled principles of Muslim law, is vague, does not provide solutions to the problem for which it was enacted and sets a dangerous trend for dealing with the issues in the largest minority community. I argued my petition before the Constitution Bench last year in September, others also did and the judgment is awaited.

By facilitating the provision to seek higher maintenance in the proposed Bill, I conclude that reference is made to the general provisions in this regard found in section 125 of the Criminal Procedure Code (Cr.PC), where the maximum amount that can be awarded is Rs. 500 a month. This also means less than Rs. 500 can also be awarded as maintenance as was done in the case of Begum Shahbano. The Judicial Magistrate, Indore, had granted Rs. 25 a month under the provisions of CrPC section 125 and the Madhya Pradesh High Court enhanced the amount to Rs. 279.20 calculated on the bases of the declared income of Mohammed Ahmed Khan, husband of Begum Shahbano and a lawyer by profession! Some time ago, the Uttar Pradesh Government amended provisions of CrPC section 125 locally and enhanced the limit from Rs. 500 to Rs. 5000. I understand that the Central Government would like to do away with the ceiling limit all together in the proposed Bill.

The Law Commission had recommended such enhancement long ago. Children, parents and other dependents can also seek maintenance under CrPC section 125. Last month, directions emerging out of a Supreme Court decision, where a husband was denied divorce because he did not provide maintenance to his wife, seem to have accelerated the Cabinet's decision to propose an appropriate amendment to facilitate quick relief and maintenance.

The exclusion of Muslim woman from the general scheme meant for all the other Indian women is unconstitutional. The Constitution has an unshakable vision as a mere reading of the Preamble makes clear. The visionaries responsible for the creation of the Indian state after Independence had a determined vision of creating a society free from discrimination based on sex, race, religion, place of birth, language etc. This vision of social engineering demands a policy framework for consequential progress and development. The mandate is to make and implement policies that take the state forward and towards equality, harmony and unity.

There is no provision in the Constitution which empowers the Executive to trifle with this vision and take society backwards or allow a section of society to go backwards in the name of religious freedom. Our Constitution makers knew that if space for such choices was allowed, it would have the potential to push the country towards disharmony and possibly backwards. There is no such room and scope in the Constitution for exercising this negative form of freedom by any section of society. Therefore, the right conferred upon all Indian women by CrPC section 125 cannot be denied to one section identified solely by religion. Article 13 (2) of the Constitution does not permit this. The proposal to amend the procedures to make sure that application seeking maintenance under CrPc section 125 and also under relevant provisions of other personal laws are disposed of by the court within 60 days, if implemented will also be a great relief.

The contents of the proposed Bill are yet to emerge for public debate. By doing away with the ceiling amount does the Government wish to club the provisions under CrPC section 125 with the relief provided in the various personal laws like it was done after the decision in the Shahbano case? Does the Government wish to provide the facility of summary procedures therein. I do hope and pray that the availability of relief under CrPc section 125 will still be made available and the procedure will not divert action for relief entirely under civil and personal laws.

The provisions of CrPC section 125 are essentially secular in nature and deal with cases of acute poverty and helplessness. It is the State's responsibility to prevent destitution and vagrancy. It is part of the whole concept of bandobast involved in maintaining law and order. The social welfare provisions available in other countries do help an individual to maintain his or her dignity. In the case of India, the state abdicated its responsibility long back, when we were under British rule. The relevant provisions of section 488 of the old Criminal Procedure Code have now been replaced by CrPC section 125.

In 1973, the provisions of CrPC section 125 were amended and an important explanation was added which said that the definition of wife extended also to a divorced woman who has not remarried. Another amendment quietly made in the provisions of section 127 (3) (b) earlier than 1973, possibly in 1970, says that if a woman has received any relief after divorce, under any customary or personal law, she shall not be entitled to the benefit of seeking maintenance under CrPC section 125.

Under the matrimonial provisions governing Muslim women, they are entitled to a dower amount, which is in lieu of agreeing to marry, a consideration for entering into the contract of marriage. This can be demanded by the wife immediately and is payable on demand after marriage or any time thereafter. If not collected earlier, it becomes payable immediately after divorce in India. In other Muslim countries, women take it at the time of marriage. To equate it with the right of maintenance under CrPC section 125 only goes to establish the gross misuse of the process of law and lack of understanding of the settled principles of Muslim Law. Thus Muslim women have been grossly discriminated against because of religion with regard to the applicability of the secular provisions of CrPC section 125. The provisions of 127 (3) (b) have prejudiced no one but Muslim women and have played mischief with all the constitutional and Quranic rights (Verse 241 of Chapter II) of the divorced Indian Muslim women.

The decision made in Shahbano Begum's case is law even today as it has not yet been overruled by any other decision of the Supreme Court, which provides for the husband to maintain his divorced wife under CrPC section 125. It rightly justified that even the Quran provides for the duty of the husband to maintain his divorced wife. At the same time, the judgment should have upheld the simple secular rights of the Muslim women and should have struck down the provisions of CrPC section 127 (3) (b) as unconstitutional on the grounds that these tend to deny Muslim women their secular rights and relief available under section 125. What the Shahbano case decision did was to interpret and justify the secular provisions by use of the provisions under personal and customary law. Wherein availability of rights under the secular provisions get somewhat diluted - a dangerous trend from the point of view of protection of the interests of women of the minority community.

(The writer is a Supreme Court Advocate).

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