Women’s right over ‘rights’ of customs

A Supreme Court order on Wednesday finally ended the lack of clarity that has prevailed for four decades on the rights of illegally divorced Muslim women. The apex court asserted that any discrimination in matters of alimony under the country’s secular laws would be regressive and against gender justice and equality. This is a much-needed, most welcome clarification.

The court ruled that all Muslim women – including those who have been illegally divorced by the pronouncement of triple talaq, a cognisable offence under the Muslim Women (Protection of Rights on Marriage) Ordinance 2018 – are entitled to seek maintenance from their husbands as per Section 125 of the CrPC.

The separate but concurring judgments in Mohd Abdul Samad v. The State of Telangana give firmer grounding to the 2019 order by Justice Ahsanuddin Amanullah of the Patna High Court, which stated that a divorced Muslim woman could not be debarred from seeking maintenance under Section 125. Both orders underline that religion-neutral provisions of the law must override personal or religious laws.

Not doing so violates Article 15(1), which prevents the state from discriminating on the grounds of religion, race, caste, sex or place of birth, and allows a person’s identity as a citizen to take precedence over primordial identities. The top court’s ruling has implications for Article 44, which says that the state shall endeavour to secure a uniform civil code ‘throughout the territory of India’.

While both orders vindicate the struggles of Shah Bano, they will not be enough. Other supporting structures, such as implementation of law, timely legal help and constant social support, will be necessary if the court orders are to deliver their intended impact effectively.