The Hindu Editorial Analysis- 12th July 2024 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

 Secular Remedy 

Why in News?

In holding that a divorced Muslim woman is not barred from invoking the secular remedy of seeking maintenance under the Code of Criminal Procedure (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 al lowed in Muslim personal law alone.

Story so far:

• The Supreme Court bench rejected the argument that Section 125 of the CrPC does not apply to Muslims because they have their own personal law.
• The court ruled that the Muslim Women (Protection of Rights on Divorce) Act, 1986, does not override the secular law.

Key Points of the Judgment:

1. Legal Standing:

   • "There cannot be disparity in receiving maintenance based on the law under which a woman is married or divorced."

2. Application of Section 125:

   • Justice Nagarathna emphasized, "Section 125 of the CrPC cannot be excluded from its application to a divorced Muslim woman, irrespective of the law under which she is divorced."

3. Role of the 1986 Act:

   • The judgment underscored that the rights granted under the 1986 Act to receive maintenance during ‘iddat’ are in addition to, not in derogation of, those under Section 125 of the CrPC.

Muslim Women (Protection of Rights on Divorce) Act, 1986

Purpose:

• To protect the rights of Muslim women who have been divorced by, or have obtained a divorce from, their husbands.
• To provide for matters connected with or incidental to their divorce.

Key Provisions:

1. Maintenance:

   • During Iddat Period: A Muslim woman is entitled to a reasonable and fair provision and maintenance from her husband during the iddat period (a waiting period after divorce).
   • Post-Iddat Maintenance: If she cannot maintain herself after the iddat period, she can claim maintenance from her relatives who would inherit her property on her death. If no relatives are available, the State Wakf Board is responsible for her maintenance.

2. Mehr (Dower):

   • The woman is entitled to the payment of mehr (dower) that was agreed upon at the time of marriage.

3. Return of Property:

   • The woman is entitled to all the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband, or any other person.

4. Rights of Children:

   • The Act also provides for the maintenance of children born out of the marriage until they reach the age of two years.

Application to Magistrate:

• A divorced woman, or someone acting on her behalf, can apply to a Magistrate for an order under the Act.
• The Magistrate has the authority to make orders for payment of maintenance, mehr, and return of property.

Criticisms and Issues:

1. Limited Scope:

   • Critics argue that the Act’s provisions are limited to the iddat period and do not ensure long-term maintenance.

2. Dependence on Relatives:

   • Post-iddat maintenance depends on relatives, which might not always be practical or feasible.

3. Role of Wakf Board:

   • The effectiveness of the Wakf Board in providing maintenance has been questioned due to administrative and financial constraints.

4. Violation of Right to Equality:

   • The MWPRD Act has been criticized for creating discriminatory practices by limiting the maintenance period for Muslim women compared to women of other communities, thus violating the Right to Equality under Article 14 of the Constitution.

Context and Historical Perspective:

1. Shah Bano Case (1985):

   • The court referenced the landmark Shah Bano case, which affirmed Muslim women’s right to maintenance under Section 125 of the CrPC.

2. Danial Latifi Case (2001):

   • It highlighted subsequent interpretations ensuring that the 1986 Act does not deprive Muslim women of rights under Section 125.

3. Rejection of Restrictions:

   • The court rejected restrictive interpretations that could hinder gender justice and emphasized the importance of providing adequate maintenance, not minimal amounts, to destitute Muslim women.

4. Continuation of Section 144:

   • The judgment noted that the Bharatiya Nagarik Suraksha Sanhita, 2023, which has replaced the CrPC, retains the older provision on alimony under Section 144.

Section 125 of the Criminal Procedure Code (CrPC):

Purpose:

• Maintenance Orders: Section 125 of the CrPC provides for the maintenance of wives, children, and parents who are unable to maintain themselves.

Key Provisions:

1. Eligible Persons:

   • Wife: Includes a divorced wife who has not remarried.
   • Legitimate and illegitimate minor children.
   • Adult children: Unable to maintain themselves due to physical or mental abnormalities.
   • Parents: Includes both father and mother who are unable to maintain themselves.

2. Conditions:

   • Sufficient Means: The person liable to pay maintenance has sufficient means.
   • Neglect or Refusal: The person liable has neglected or refused to maintain the eligible person.

3. Order:

   • The Magistrate can order a monthly allowance for the maintenance of the eligible person.

4. Maximum Amount:

   • There is no fixed maximum amount; it is determined by the Magistrate based on the circumstances.

Significance:

• Social Justice: It aims to prevent vagrancy and destitution by ensuring that dependents are provided for.
• Secular Applicability: It applies to all religions and is not specific to any particular religion.

Implications and Legal Precedent

1. Equality under Law:

   • The judgment reinforces the principle that Muslim women have the same legal recourse as women of other faiths under Section 125 of the CrPC.

2. Additional Remedies:

   • It affirmed that provisions like the Muslim Women (Protection of Rights on Marriage) Act, 2019, do not exclude rights under Section 125.

PYQ:

[2020] Customs and traditions suppress reason leading to obscurantism. Do you agree?

[2019] Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice?

(a) Article 19
(b) Article 21
(c) Article 25
(d) Article 29