Any divorced woman in India is entitled to the benefit of Section 125 of the Criminal Procedure Code, now replaced by the Bharatiya Nagarik Suraksha Sanhita, regardless of her religion. In two concurring verdicts, Justice BV Nagarathna and Justice Augustine George Masih of the Supreme Court ruled that the woman concerned could choose whether to follow the personal law or the secular law. The case involved a divorced Muslim woman who could have claimed maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act of 1986. It may be recalled that, following a countrywide protest against a Supreme Court verdict granting a monthly maintenance of Rs 125 to the elderly and indigent Shah Bano, the Rajiv Gandhi government enacted the special law in 1986.
The two laws, however enabling they may be, have some fundamental differences. While maintenance is permitted under the 1986 law for the period of “iddat,” which is three months during which she cannot remarry, she is entitled to alimony until she marries again under the CrPC. Similarly, children who are under her custody are entitled to maintenance for only two years under the Muslim law, whereas they are entitled to it under the secular law until they attain the age of maturity. The court ruled that if there was a clash of interest between the two laws, the woman could take advantage of the law more favourable to her. In other words, just because the woman belonged to the Muslim community, she should not be treated differently. In the Mary Roy case, the court had ruled that if secular and personal laws clashed, women should be allowed to benefit from whichever law was more beneficial to them. The verdicts may be different, but the principle underlining them is the same.
