‘Men will now abandon, not divorce’ – Muslims divided over Supreme Court alimony verdict

Though the judgment should have no bearing on mehar, we might see that amount get reduced or zeroed, lawyer Priya Hingorani told ThePrint.

Representational photo of hijab-wearing women | ANI

New Delhi: From criticising the Supreme Court for ‘interfering in religious matters’ to celebrating the fact that its judgment upheld divorced Muslim women’s right to get maintenance and alimony by their husbands, the Muslim community is both welcoming and disgruntled. 

In a landmark judgment delivered Wednesday, the country’s top court dismissed a petition of a Telangana man challenging a directive to pay maintenance. The court upheld that Muslim women are eligible for alimony post-divorce under Section 125 of the Code of Criminal Procedure (CrPC). The provision empowers magistrates to order maintenance toward wives, children, and parents in case of neglect.

Supreme Court advocate Priya Hingorani fears that the judgment could lead to a double whammy against women, where they do not get mehar, and spend years in court fighting to get an alimony amount. 

“Though the judgment should have no bearing on mehar, we might see that amount get reduced or zeroed in light of this judgment. It could happen that the woman gets nothing at the end of the day, and has to run from pillar to post to get her rightful alimony amount. This could be a challenge,” Hingorani told ThePrint over the phone.  

Double whammy

Even for people who wholeheartedly welcome the verdict, a reservation loomed large at the back of their minds. 

“The Supreme Court should not interfere in religious matters, whichever community it is. Muslims follow very balanced laws. You are (SC) making things difficult. Men might choose to abandon her instead of divorce her,” said Asma Zehra Tayeba, a member of the All India Muslim Personal Law Board.

The judgment is yet another reform apropos Muslim Personal Law, after Triple Talaq was criminalised in 2019. Delivered over the lingering shadow of an unfulfilled promise of a Uniform Civil Code by the Bharatiya Janata Party, the verdict delivered Wednesday by Justice BV Nagarathna and Justice Augustine George Masih aligns with the chorus of reforming personal laws by a select section of people in the country. 

Under Sharia law, women are promised mehar at time of wedding, which is basically a sum of money to be paid to the woman should the marriage break. The mehar could be paid at the time of the wedding, or when the marriage breaks.

Rafiah Mahir, a young politician, said since there was no legal recourse available for women so far, sometimes men and their families do not pay the promised mehar to their estranged partners. Having a legal right to seek alimony would help women. 

Hingorani, who represented one of the parties in the Triple Talaq case, said she welcomes the court’s verdict. “Judgment is a need of the hour. We have always argued that our law doesn’t recognise an Indian woman. There is a Muslim woman, a Parsi woman, a Hindu woman. This is why we have been pitching for a Uniform Civil Code,” she said.

The latest verdict is also reminiscent of the 1985 Shah Bano case, which had first ruled that Section 125 of the CrPC applies to all women, irrespective of religion. However, the judgment was somewhat diluted by the Muslim Women (Protection of Rights on Divorce) Act 1986, which stated Muslim women can ask for alimony only during the iddat period, which is 90 days long. This happened under the prime minister-ship of Rajiv Gandhi. The questions before the court this time pertained to the interplay between a Muslim woman’s right to seek recourse under Section 125, and the 1986 law.

On Wednesday, the Supreme Court, quoting Section 3 of the 1986 Act, interpreted that it never restricted the rights of a Muslim woman to the iddat period, and concluded: “If Muslim women are married and divorced under Muslim law then Section 125 of the CrPC as well as the provisions of the 1986 Act are applicable. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws.”

Fight against patriarchal personal laws 

For feminists, the verdict provides hope for strengthening the decades-long movement of seeking reform in patriarchal personal laws. It will also give them courage to carry on the fight for equality. 

However, Amir Rashadi Madani, president of the National Ulema Council, said that this decision has been made in a “private matter” and will not have a significant impact on society. 

“It will have no impact on the community. Personal laws are for eternity and cannot be changed,” Madani said.

The Supreme Court’s verdict, citing the Shah Bano judgment, states that rights under Section 125 of CrPC will be accessible to women of all religions. The court has further added that women can invoke Section 125 of CrPC even without divorce. “The right to seek maintenance under Section 125 of CrPC 1973 is invokable even during the sustenance of marriage and, thereby is not contingent upon divorce,” the judgment reads. 

“I welcome the judgment because it favours women, as it grants them a legal recourse to get alimony. But similar provisions already existed in Muslim Personal Law, then this kind of judgment reeks of political motivation. It is just another step towards the Uniform Civil Code,” said Mahir.

Like Mahir, some lawyers are also sceptical. 

Firuza Shah, who has been representing clients challenging provisions of the Parsi Marriage and Divorce Act of 1936 as well as the excommunication of Parsi women from the community if they marry outside the community.

“This is a provision brought to protect the rights of Muslim women,” Shah said.

But she welcomed the court’s observation that alimony is a right not charity, recognising women’s labour in a household, which typically helps men step out of the house and earn.

In the judgment, Justice Nagarathna recognised the vulnerability of married women who do not have an independent source of income, and asserted that maintenance is, “a facet of gender parity and enabler of equality, not charity”. 

“The contribution of a woman in a household is completely disregarded by courts in grant of alimony, even if a woman is taking care of the house, taking care of children… which makes it easy for the man to go out and earn. However, it becomes his money when it comes for divorce, in essence that ideology has to change. The judgment takes into consideration that it is not charity, it is her statutory right. We need more progressive judgment like this,” she said. 

Both Shah and Hingorani, however, sounded alarm bells over the burden on district and family courts in light of increasing marriage disputes reaching courts, especially after Covid-19. 

“These kinds of judgments work when there is quick disposal of cases. But family and district courts today are overburdened. There is a dearth of judges in the family and district courts today, as cases pile up,” Hingorani said. 

She also highlighted another technicality, which might prove to be a hindrance for women seeking recourse.

“Divorce cases are filed in front of family courts, while cases under Section 125 go to Metropolitan Magistrate court. This could be concerning at the first filing of cases seeking alimony by Muslim women,” she said.