Anwarulhaq Baig
NEW DELHI: Muslim scholars and Islamic organizations, including AIMPLB, have expressed their dissent to a far-reaching Supreme Court ruling upholding divorced Muslim women’s right to claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973, reaffirming that personal laws cannot override secular provisions. The ruling has ignited a heated debate within the Muslim community and legal circles, drawing reactions from various Islamic organizations and scholars. The AIMPLB and other Muslim organizations are considering legal options to challenge the ruling. They argue that the judgment contradicts existing laws that protect Muslim personal law, such as the Shariat Application Act 1937 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
All India Muslim Personal Law Board, Mushawarat Call it Contradictory with Existing LawsÂ
Dr. S.Q.R. Ilyas, spokesperson for the All India Muslim Personal Law Board (AIMPLB), strongly disagreed with the Supreme Court’s decision. He stated, “Yesterday’s Supreme Court decision giving lifelong alimony to divorced Muslim women is against Sharia laws.” Dr. Ilyas emphasized that Muslims in India are governed by the Shariat Application Act, which is based on Sharia, similar to how Hindus are governed by the Hindu Code. He asserted, “Article 25 of the Constitution also guarantees freedom of religion. Therefore, the court must refrain from applying IPC or CrPC contradicting the above provisions.”
The AIMPLB spokesperson maintains that according to Islamic laws, a divorced woman is entitled to maintenance only during the period of iddat (waiting period after divorce). Dr. Ilyas questioned the practicality of the ruling, stating, “If a husband has to provide maintenance to his divorced wife, why would he give divorce in the first place?” Dr. Ilyas informed that the AIMPLB’s legal committee is studying the Supreme Court judgment. He added, “On its advice, the board may seek legal and other options available to us.”
Maulana Khalid Saifullah Rahmani, President of AIMPLB, revealed that a team of scholars and lawyers is preparing to present their case before an appropriate bench at a suitable time. He noted, “If we look at the situation, this decision is not new. Such decisions have come in the past as well.”
Dr. Zafarul-Islam Khan, President of All India Muslim Majlis-e Mushawarat (Registered) and former Chairman of Delhi Minorities Commission, labeled the Supreme Court’s judgment as “wrong.” He drew parallels with the Shah Bano case, which had caused significant turmoil in the past.
Dr. Khan emphasized, “Muslim personal laws are legally protected in India through the Shariat Application Act 1937, and this particular issue is protected by the Muslim Women (Protection of Rights on Divorce) Act, 1986. Until these two laws are repealed by Parliament, no judge has the right to give such judgments.” He urged Muslim organizations to approach a larger bench to overturn what he termed an “illegal decision.”
Jamiat Reactions
Maulana Syed Arshad Madani, President of Jamiat Ulama-e-Hind, stated that their legal team is reviewing the Supreme Court’s decision. He said, “We will also hold a meeting with lawyers. Whatever is appropriate from a legal point of view will be done.”
JIHÂ calls for consultation with AIMPLB to find solution respecting Muslim personal laws
Expressing concern over the verdict, Jamaat-e-Islami Hind (JIH) Vice President Malik Moatasim Khan asserted that the 1986 Act provides comprehensive provisions for maintenance during ‘iddat’ and questioned the imposition of additional financial obligations on men post-divorce’. He highlighted the fairness of Section 3 of the Act compared to Section 125 of CrPC, citing its broader scope in addressing individual circumstances under Muslim personal law. He expressed confusion over the simultaneous existence of multiple legal remedies for maintenance and urged the court to clarify the application of Section 127(3) of CrPC. The JIH leader stressed the need for the court to affirm that maintenance for divorced Muslim women falls under Muslim personal law as defined in the 1986 Act. He criticized the neglect of the Sharia Application Act 1937 and argued for adherence to constitutional guarantees of religious freedom. Malik Moatasim differentiated Islamic law’s approach to divorce from Western legal systems, rejecting the concept of alimony after divorce. He underscored Islamic provisions for inheritance and communal support through Zakat and Waqf for divorced women. He warned that the ruling could deter divorce-seeking women due to fears of alimony payments. He asserted that any alteration to Muslim personal law would violate fundamental rights and principles of social justice. The JIH V-P called for government consultation with the AIMPLB to find a lasting solution respecting Muslim personal law.
Islamic Scholar Gives Islamic Point of View Over the Issue
According to Indiatomorrow.net report, Dr. Raziul Islam Nadvi, a renowned Islamic scholar and secretary of the JIH Sharia Council of India, voiced strong criticism against the Supreme Court’s recent judgment on maintenance for divorced Muslim women. Dr. Nadvi characterized the ruling as an apparent interference in Muslim personal law, drawing parallels to the controversial Shah Bano case of 1985.
Dr. Nadvi emphasized the importance of the Shariat Application Act of 1937, stating, “The Act of 1937 gives Muslims the freedom to act according to their personal laws in matters of marriage, divorce, inheritance, and other related issues.” He argued that this legal framework should be respected and maintained.
Clarifying the Islamic perspective on marriage and divorce, Dr. Nadvi explained, “From an Islamic point of view, marriage is a contract that ends with divorce. Imposing lifelong maintenance on the husband after divorce goes against this principle.” He questioned the logic behind imposing continued financial responsibility on a man after the marital relationship has been legally terminated.
Dr. Nadvi expressed concerns about the potential negative impacts of the judgment on women’s rights, contrary to its intended purpose. He argued, “This decision is not in favor of women. If a husband knows he will have to provide lifelong maintenance, he might not give divorce and instead continue to oppress his wife within the marriage.” This, he suggested, could lead to prolonged suffering for women in unhappy or abusive marriages.
The scholar outlined Islam’s unique system of maintenance (kifalat), explaining, “According to Islamic laws, from the birth of a girl child until her marriage, the father is responsible for her care. After marriage, it becomes the husband’s duty. In case of divorce or the husband’s death, the responsibility of maintenance returns to her father or brothers.”
When questioned about situations where a divorced woman lacks family support, Dr. Nadvi advocated for collective societal responsibility rather than placing the entire burden on the ex-husband. He argued that imposing lifelong maintenance on an ex-husband is unjust and potentially damaging to the dignity of women who have chosen to end their marital relationships.
Dr. Nadvi noted, “In Islam, marriage is a contract between two persons, contrary to other religions, notably Hinduism, which regards marriage as a lifelong relation, calling it ‘Janam janam ka sath’ (a bond for a lifetime).” He questioned why, if the contract is dissolved through divorce, the ex-husband should continue to bear financial responsibility for his former wife. He posed a question: “Is there any other matter in the world where liabilities remain even after an agreement between two parties has ended? No. When this doesn’t happen in any other matter in the world, why should a husband be responsible for his ex-wife’s maintenance after the marriage contract has ended?”
The scholar also emphasized the constitutional right to religious freedom, stating, “The country’s constitution has given all minorities the freedom to practice their own religion. This freedom should also be available to Muslims.” He called for an end to interference in Muslim personal law, demanding, “The door to interference in Muslim personal law should now be completely closed.”
In conclusion, Dr. Nadvi cautioned against laws and judgments that, in his view, blindly support women at the expense of men. He stated, “There should be no law or decision that blindly supports women while oppressing men, on the other hand.”
Other Reactions
Mohammad Sulaiman, President of the Indian National League and a founding member of the AIMPLB, referred to the Shah Bano case of 1985 and its aftermath. Sulaiman observed that the higher judiciary generally believes that religious codifications alone are not sufficient to protect women’s rights, a mentality that extends beyond Islamic cases. However, Sulaiman pointed out a potential issue with the judgment, noting that even after separation, the relationship doesn’t truly end if a woman continues to receive maintenance from her former husband, calling it an “unnatural practice and approach.”
Senior Advocate Wasim Qadri, who represented Abdul Samad in the Supreme Court, highlighted the broader implications of the judgment. He explained that the ruling is not limited to divorced Muslim women but applies to all women, regardless of religion. Furthermore, it extends to women in ongoing marriages, not just those who are separated or divorced.
This SC ruling has reignited the debate on the intersection of personal laws and secular legislation in India. The critics argue that it infringes upon religious freedom and the principles of Islamic personal law.