A Division Bench of the Kerala High Court on Wednesday ruled that a divorced Muslim woman's right to claim maintenance under Section 125 of the Criminal Procedure Code did not stand “extinguished” if payment under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986 had not been made by her former husband.
The Bench comprising Justice R. Basant and Justice M.C. Hari Rani made it clear that a divorced Muslim woman would be entitled to claim maintenance from her former husband till she remained a divorcee. However, her remarriage or actual payment of maintenance or fair provision under Section 3 of the Act shall “extinguish” her right to claim maintenance under Section 125 of the Criminal Procedure Code.
The court ruled that a pronouncement of talaq remained valid only if attempts for reconciliation by two arbitrators in terms of Islamic laws were made before such pronouncement.
If such efforts for reconciliation failed, it shall be decided that there had been a “reasonable cause” for such divorce.
The reasonableness of such substantive cause for divorce could not be justifiable by a court.
The court made this ruling while dealing with a Muslim divorce case.
The court observed that it was assumed that a Muslim man could unilaterally end his marriage by pronouncing talaq without the intervention of a court.
This provision was arbitrary. Though it might offend the notion of gender justice, such practice was well settled in the country. Such a divorce was considered perfectly valid.
The Supreme Court did not appear to have addressed the issue so far. The obligation of hapless Muslim women to suffer polygamy and arbitrary termination of marriage by pronouncing talaq without court intervention appeared to offend the fundamental rights guaranteed under the Constitution.
The court observed that these issues would have to be addressed by the secular State.
The issues could not be pushed under the carpet by the legislature or the constitutional courts. The court expressed the hope that the legislatures would soon address the issue.