October 28, 2015

India: Supreme Court to revisit The Muslim Women (Protection of Rights on Divorce) Act of 1986

The Telegraph

SC scans Shah Bano law
R. Balaji

New Delhi, Oct. 27: The Supreme Court has ruled that the controversial law enacted by the Rajiv Gandhi government to annul the Shah Bano judgment should be visited by a constitution bench and Muslim women cannot be discriminated against in terms of polygamy and alimony.

The Muslim Women (Protection of Rights on Divorce) Act of 1986 restricts the period for payment of maintenance to iddat, a window ranging from three months to four months and 10 days during which a Muslim woman is not supposed to remarry after divorce or the death of her husband. Wakf boards are expected to help the women after iddat.

The 1986 law, criticised at that time as an appeasement measure, effectively overturned the landmark Supreme Court judgment that held that Section 125 of the Code of Criminal Procedure applies to everyone regardless of caste, creed or religion. Section 125 provides for maintenance to a divorced woman unable to maintain herself throughout her lifetime unless she remarries.

Section 125 makes maintenance mandatory until a divorced woman who is unable to maintain herself remarries, subject to a few conditions.

Now, a bench of Justices A.R. Dave and A.K. Goel has urged the Chief Justice of India to constitute an "appropriate bench" to deal with the two issues: polygamy and maintenance.

The order was passed on October 16 but does not appear to have drawn much attention since then. The bench had converted into a PIL certain arguments on gender discrimination raised by a lawyer in a property dispute between two Hindu families of Karnataka.

A Muslim man can have four wives at a time, subject to several conditions.

Justice Goel, writing the judgment, said: "There is no safeguard against arbitrary divorce and second marriage by her husband during the currency of the first marriage, resulting in denial of dignity and security to her."

The apex court noted that although a five-judge constitution bench considered the 1986 Act in 1997, it had refrained from passing any order and observed "that a climate was required to be built for a uniform civil code".

"The constitution bench did not address the said issue but the court held that Article 21 included right to live with dignity which supports the plea that a Muslim woman could invoke fundamental rights in such matters," the court said.

Citing a 2003 case, the bench said: "It was further observed that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on the ground of violation of personal law of Muslims...."

"Laws dealing with marriage and succession are not part of religion. Law has to change with time. International covenants and treaties could be referred to examine validity and reasonableness of a provision."

On maintenance under the 1986 act, the court said: "Thus the provisions... providing for her maintenance to be paid by the former husband only for the period of iddat and, thereafter, to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the wakf board does not appear to be a reasonable and fair substitute to the provisions of Section 125 CrPC.

"Such deprivation... cannot be stated to have been effected by a reasonable, right, just and fair law...."

The court added: "The provisions prima facie, therefore, appear to be violative of Article 14 (equality before law) of the Constitution.... and also violative of Article 15 (against discrimination on the basis of religion etc)."