Secular remedy for Divorced Muslim women: SC

Context:

The Supreme Court of India recently held that divorced Muslim women are entitled to maintenance under the “secular” Section 125 of the Code of Criminal Procedure.

• The court noted that a remedy under the secular statutory provision of Section 125 of the Cr.PC cannot be foreclosed for divorced Muslim women by virtue of enactment of a personal law remedy under the Muslim Women (Protection of Rights on Divorce) Act, 1986.
• Hence, a divorced Muslim woman is entitled to all rights of maintenance available to other equally situated women in the country.

Relevance:

GS Paper 2: Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure; Comparison of Indian constitutional scheme with other countries’

Dimensions of the Article:

1. What are Alimony and Maintenance?
2. Laws related to Alimony and Maintenance in India.
3. Issues related to Alimony and Maintenance in India.
4. The Supreme Court’s guidelines regarding alimony
5. way forward

What are the Alimony and Maintenance?

Alimony and maintenance both connote the existence of a duty on the part of one person to provide for the needs of another person or persons who are dependent on them.

• Interim maintenance: While the legal proceedings are still underway, a husband is required to pay maintenance for the wife, along with the expenses of the proceedings. The interim maintenance is payable from the date the petition is filed, till the time the final order is passed.
• Permanent maintenance:  When a decree of dissolution of marriage or judicial separation is obtained by the wife, the court may order that the husband shall pay the wife any particular amount fixed by the court, either periodically.

Laws related to Alimony and Maintenance in India:

Our country comprises different communities, and each community has its own personal laws derived from religious scriptures, customs and traditions.

• Hindu woman can seek divorce and alimony may not be the same for every other community. The Hindu community is governed by The Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956, which grant the right to women to claim maintenance. Under Hindu laws, the quantum of maintenance amount is based on several factors like husband’s financial income, assets, liabilities, wife’s employment and earning status etc.
• Under Muslim personal law, the wife can claim compensation through Muslim Women (Protection of Rights on Divorce) Act, 1986.
• Divorced Christian women can claim maintenance under the Indian Divorce Act, 1869. The Act prescribes one-fifth of the husband’s income as the maximum maintenance amount.
• The Parsi Marriage and Divorce Act, 1936 provides the right of a wife to claim maintenance from her husband as one of the rights of wife after divorce in India, while in the case of inter-caste marriage it is governed by Special Marriage Act, 1954.

Section 125 of the Code of Criminal Procedure, 1973, which applies to all communities lays down the provision for maintenance of wives, children, and parents if they do not earn enough and reasonable means to maintain themselves, or suffer from any physical or mental incapacity. Under this section, even a wife who has not divorced her husband has the right to get maintenance from her husband.

Issues related to Alimony and Maintenance in India:

• Maintenance and alimony is the only source of livelihood hence discrimination on the basis of religion, race, caste, sex or place of birth is a direct attack on the right to life, liberty and dignity, guaranteed under Article 21 of the Constitution.
• The discriminatory maintenance and alimony reinforce patriarchal and stereotypical notions about women and thus any provision that perpetrates or reinforces discriminatory stereotypes against women is manifestly arbitrary.
• All the women don’t have equal rights related to alimony in India which violate their right to equality as a fundamental rights under Indian constitution.
• In India, the women are much vulnerable due to patriarchal attitude of society towards women therefore, there should be clarity regarding alimony so that women can live dignified life.
• Most of the girls in India get marry at early age and if they get divorce then proper alimony is needed to sustain their life.
• In India, judicial proceedings take long time and require enough money therefore interim maintenance is needed.
• Even after 73 years of Independence and 70 years of India becoming a socialist secular democratic republic, laws relating to maintenance and alimony are not only complex and cumbersome but also against the constitutional mandate of being equal, rational and just.
• The discriminatory grounds of maintenance and alimony are violative of Articles 14, 15, 21 of the Constitution.

The Supreme Court’s guidelines regarding alimony

Article 15(3), which states ‘nothing in this article shall prevent the State from making any special provision for women and children’, read together with Article 39, which directs state policy towards equal pay and opportunities for both men and women, and protecting the health of women and children, are two key constitutional safeguards. The Supreme Court leaned on these two Articles, and a host of other laws, and set down comprehensive guidelines on alimony.

• The right to claim maintenance under all enactments, including those under Section 125 of the CrPC, must date back to filing of the application.
• “Financial constraints of a dependent spouse hamper their capacity to be effectively represented before the court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is led before the court concerned,” a Bench headed by Justice Indu Malhotra said.
• The delay in adjudication is not only against human rights, but also against the basic embodiment of dignity of an individual.
• While women can make a claim for alimony under different laws, including the Protection of Women from Domestic Violence Act, 2005 and Section 125 of the CrPC, or under the Hindu Marriage Act, 1955, it “would be inequitable to direct the husband to pay maintenance under each of the proceedings”, urging civil and family courts to take note of previous settlements.

-Source: The Hindu