In holding that a divorced Muslim woman is not barred from invoking the secular remedy of seeking maintenance under the CrPC, the Supreme Court of India has done well to clarify an important question concerning the impact of a 1986 law that appeared to restrict their relief to what is allowed in Muslim personal law alone.
The enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, that is seen as having undermined the country’s secular ethos by seeking to nullify a Court judgment in the Shah Bano case (1985), which allowed a divorced Muslim woman to apply for maintenance from a magistrate under Section 125 of the CrPC.
Subsequently, the 1986 law was upheld by a Constitution Bench in 2001 after coming close to declaring its provisions unconstitutional for discriminating against Muslim women
The Act was declared valid after the Bench read it down in such a way as not to foreclose the secular remedy for Muslim women.
The latest verdict settles confusions by holding that the codification of a Muslim woman’s rights in the 1986 Act was only in addition to and not in derogation of her right to seek maintenance like a woman of any other religion.
Justice Masih, in his main opinion, concludes that both the personal law provision and the secular remedy for seeking maintenance ought to exist in parallel in their distinct domains.
While the CrPC may be invoked by a woman if she was unable to maintain herself, the 1986 Act makes it a Muslim husband’s obligation to provide for his divorced wife and her children up to a certain point
The verdict is a great example of the Court using harmonious interpretation to expand the scope of rights as well as to secularise access to remedies
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