Alimony ruling ends disparity, not diversity
India’s diversity is a virtue to be preserved and celebrated. But the country would not be any less culturally diverse if the access to justice is secularised
Seventy-five years after India got a modern Constitution, its courts are still called upon to decide whether an Indian woman who happens to belong to a religious minority should be entitled to subsistence under a secular law.
On July 10, a two-judge bench of the Supreme Court held that a divorced Muslim woman was entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973, which entitles a wife to claim maintenance from her husband if she cannot maintain herself. The issue ought to have been settled after the landmark ruling of a constitution bench of the Supreme Court in Danial Latifi v. Union of India where the court upheld the right of a divorced Muslim woman to maintenance beyond her iddat period and in the context of Section 125 of the Code confirmed that a man could not, on the pretext of personal law, be allowed to get away by giving his wife less than what she is entitled to under secular law. In that case, the court was considering the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which was enacted to placate the clergy after the uproar over the Shah Bano case, which granted maintenance to a divorced Muslim woman under Section 125 of the Code. The 1986 Act, was on the face of it, a beneficial legislation but really intended to limit the rights of a divorced Muslim woman by confining maintenance to the iddat period and no further. However, interpreting the Act liberally and in favour of the rights of a destitute woman, the court held that the maintenance could not be limited to the iddat period, thereby interpreting it at par with the general law.
Despite this ruling that should have settled matters, errant husbands seeking to deny their divorced wives maintenance take recourse to personal law over secular law because the former leans in their favour.
How long will our courts be burdened with the myriad issues that arise from conflicts between personal law and a modern Constitution? Issues ranging from maintenance, divorce, guardianship, adoption, succession and inheritance involve an interplay between personal law and secular law and are brought to court most often by hapless female litigants.
Vested interests seek to justify the supremacy of personal law in the name of religion. Indeed, India's diversity and inherently plural character are virtues to be preserved and celebrated. But would India be any less culturally diverse if the access to justice is secularised?
Access to justice is a facet of the fundamental right under Article 21 of the Constitution and must be ensured equally to all citizens regardless of religious affiliation. In India, depending on which religious community one belongs to, marriage can be a sacrament or a contract. Indian marriage ceremonies are accompanied by an incredible range of practices and rituals — saptapadi, nikaah, anand karaj, and church weddings — all abound and happily coexist. That diversity is unmatched anywhere in the world. But it is one thing to celebrate diversity in rituals and festivities, and quite another to leave people to the mercy of jarringly divergent and discriminatory processes when they need to secure justice.
Take the example of the different processes involved in obtaining a divorce. When a member of the Parsi Zoroastrian minority seeks divorce, the matter is relegated to a jury trial — one of a kind in India. The grant of a divorce for a Parsi couple hinges on the verdict of a jury gathered from members of a dwindling community. The process can be excruciatingly long and cumbersome. That apart, should it really be up to the rest of the community to decide, and dirty linen washed amidst one’s peers?
For Hindus, on the other hand, divorce is subject to specified grounds under the Hindu Marriage Act, 1955. But even here, the process in the family court for a contested divorce is long and painful. For Muslims, notwithstanding the abrogation of instantaneous triple talaq, following the Supreme Court’s verdict in the Shayara Bano case, the process remains unilateral at the instance of the husband and is over in three months without recourse to a court of law for a wife not desiring divorce.
Is it not anachronistic under a modern Constitution to have such different strokes for different folks? Can disparity not be erased without eroding diversity? A skillfully and sensitively crafted Uniform Civil Code should aim to do just that. Had that task been accomplished in time Shah Bano would not have had to go to court in 1978, nor Shayaro Bano in 2016.
Madhavi Goradia Divan is senior advocate, Supreme Court of India. The views expressed are personal
All Access.
One Subscription.
Get 360° coverage—from daily headlines
to 100 year archives.
HT App & Website
