New Delhi: The Supreme Court on Wednesday said to truly empower Indian women, referred to as "homemakers", their 'financial security' and 'security of residence' have to be protected and enhanced, while ruling that a Muslim woman can seek maintenance from her husband under Section 125 of the Code of Criminal Procedure (CrPC), which is applicable to all married women irrespective of religion.
A Bench of Justices B.V. Nagarathna and Augustine George Masih, which pronounced a separate but concurrent verdict, said Section 125 of the CrPC applies to all married women including Muslim married women. Section 125 of the erstwhile CrPC deals with the wife's legal right to maintenance.
Justice Nagarathna said an Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife, who does not have an independent source of income, by making available financial resources particularly towards her personal needs.
"Indian married men who are conscious of this aspect and who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged," said Justice Nagarathna, in her 53-page judgment.
The Muslim Women (Protection of Rights on Divorce) Act, 1986, provides for a procedure for a Muslim woman to claim maintenance during divorce. The law was introduced after the 1985 Shah Bano judgment. The judgment allowed a Muslim woman to take maintenance from her husband under Section 125 of the CrPC.
Justice Nagarathna said a technical or pedantic interpretation of the 1986 Act would stultify not merely gender justice but also the constitutional right of access to justice for the aggrieved.
"This court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity. It follows that a destitute Muslim woman has the right to seek maintenance under Section 125 of the CrPC despite the enactment of the 1986 Act," she said.
The bench said an application for maintenance under Section 125 of the CrPC would not prejudice another application under Section 3 of the 1986 Act insofar as the latter is additional in nature and does not pertain to the same requirements sought to be provided for by Section 125 of the CrPC.
She said one of the critical aspects of adjudicating claims for maintenance is ensuring adequate and sufficiency of maintenance so that the wife can maintain herself with dignity.
"The consistent emphasis of this court’s jurisprudence upon sufficiency of maintenance amount and social protection of deserted women transcends the intricacies of our pluralist legal culture and personal laws," said Justice Nagarathna.
Position of a wife after her marriage in Indian Society
Justice Nagarathna said I would like to advert to the vulnerability of married women in India who do not have an independent source of income or who do not have access to monetary resources in their households particularly for their personal expenses. She said what is the position of a married woman who is often referred to as a "homemaker" and who does not have an independent source of income, whatsoever, and is totally dependent for her financial resources on her husband and on his family?
"It is well-known that such an Indian homemaker tries to save as much money as possible from the monthly household budget, not only to augment the financial resources of the family but possibly to also save a small portion for her personal expenses," said Justice Nagarathna.
Justice Nagarathna said a wife, who is referred to as a homemaker is working throughout the day for the welfare of the family, without expecting anything in return except possibly love and affection, a sense of comfort and respect from her husband and his family which are towards her emotional security. This may also be lacking in certain households, she added.
"While the contributions of such a homemaker get judicial recognition upon her unfortunate death while computing compensation in cases under the Motor Vehicles Act, 1988 vide Kirti vs. Oriental Insurance Co. Ltd., (2021), the services and sacrifices of homemakers for the economic wellbeing of the family, and the economy of the nation, remain uncompensated in large sections of our society," said Justice Nagarathna.
No disparity in receiving maintenance on the basis of the law
Justice Nagarathna said that 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. “There cannot be disparity in receiving maintenance on the basis of the law under which a woman is married or divorced. The same cannot be a basis for discriminating a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the CrPC or any personal or other law such as the 1986 Act," she said.
She said, "I also note that although the provisions of the 1986 Act have been upheld by a constitution bench of this court in the case of Danial Latifi, the same would not in any way restrict the application of Section 125 of the CrPC to a divorced Muslim woman".
She further said what emerges is that the 1986 Act is not a substitute for Section 125 of the CrPC and nor has it supplanted it and both can operate simultaneously at the option of a divorced Muslim woman as they operate in different fields.
"I find that if Section 125 of the CrPC is excluded from its application to a divorced Muslim woman, it would be in violation of Article 15(1) of the Constitution of India which states that the State shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth or any of them", she said.
The intent of Parliament is clear
Justice Nagarathna said the intent of the Parliament is clear: it seeks to provide adequate remedies to women from economic deprivation that may result from marital discord, irrespective of their status as a married or divorced woman.
"Therefore, prior to a divorce in accordance with law, a married woman has access to maintenance under the general law, i.e., Section 125 of the CrPC and under a special law, i.e., 2019 Act. When divorce is void and illegal, such a Muslim woman can also seek remedy under Section 125 of the CrPC”, she said.
The apex court dismissed an appeal filed by a Muslim man, questioning a Telangana High Court direction to pay Rs 10,000 interim maintenance to his former wife. The appeal filed by the petitioner contended that a divorced Muslim woman cannot seek maintenance under Section 125 of the CrPC as the Muslim Women (Protection of Rights on Divorce) Act, 1986, will prevail over it.
The apex court said: "Section 125 of the CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act in addition to remedies available under the Special Marriage Act."
