Jamaat-e-Islami Hind (JIH) has responded to the recent Supreme Court verdict requiring the payment of maintenance to Muslim divorcee women beyond the ‘Iddat’ period. In a statement to the media, the Vice President of Jamaat-e-Islami Hind (JIH), Malik Moatasim Khan said, “We have carried out a preliminary study of the verdict delivered by the Supreme Court bench of Justice B.V. Nagarathna and Justice Augustine George Masih in the Mohd. Abdul Samad (Appellant) versus the State of Telangana & anr..(Respondents) case.”

The JIH Vice President stated, “Our humble submission regarding the judgment is as follows:

“1) The 1986 Act was clearly intended as a complete code governing the case of divorced Muslim women. Section 3 of the Act contains a clear provision for dower, return of property and ‘fair and reasonable’ amount of maintenance to the divorced Muslim woman during her period of ‘iddat’. This provision should not be viewed in isolation as a remedy for providing Muslim divorced women with limited ‘one-time’ maintenance without bearing in mind that Islam clearly spells out that the onus of discharging the financial responsibility for the household squarely lies on the shoulder of the man and he cannot be burdened with a mandatory ‘extra’ financial liability outside of his marriage and familial ties. That is because men are not only obligated to look after their wives and children but also their parents and siblings till as time they are in need of social, moral and financial support. Hence, a man has to support his sister or daughter both before as well as after marriage in case she gets divorced and has to return home. This is a uniquely principled and balanced system that synchronizes with the larger Islamic ethos that is focused on protecting the raison d’etre of marriage and avoid situations where marriage and divorce becomes a burden and a source of emotional disturbance and legal acrimony.

2) It has been observed over the years that the provision under Section 3 often results in a much fairer amount of maintenance than under the Section 125 of CrPC, since the 1986 Act covers a much broader purview of the subjective circumstances of a case in accordance with Muslim personal law.

3) It is unclear to us how a separate and parallel remedy can exist simultaneously to this provision. The matter is further complicated by the Court’s observation that, as per the provisions of Section 127(3) CrPC, judges should take note of the maintenance awarded under Section 3 of the 1986 Act before making any order under Section 125 of CrPC.

4) It is necessary that the court should clear this confusion and settle the legal position that maintenance for divorced Muslim women is governed by Muslim personal law, as enumerated in the 1986 Act.

5) A fundamental question that begs an answer is why has the Sharia Application Act 1937 been completely ignored by the learned judges, whereas it is very much part and parcel of the corpus of law that governs Muslims today through the Muslim Personal Law. The Sharia Application Act 1937 gives the freedom to act according to their personal laws related to marriage, divorce, inheritance etc. This is consistent with Article 25 of the Constitution of India which guarantees the Freedom of Religion and is a fundamental right for all its citizens including Muslims.

6) From the Muslim Personal Law and Islamic point of view, marriage is governed by a contract between two individuals. The legal relationship is terminated when divorce is granted. Islamic law places no responsibility on either party once the marriage contract between them is terminated. The idea of alimony is a remnant of other legal systems where divorce was an innovation, and which had no provisions for the rights of the divorced woman. This is completely distinct from the position under Islamic law.

7) So as far as the rights of divorced Muslim women are concerned for ensuring they are not left destitute or vagrant after divorce, the Shariah not only maintains her inheritance rights, but also makes it incumbent on the family members of the divorced woman like to take her care of her financial needs in case she is incapable of doing so. In the absence of such family members, the community at large shall bear that responsibility through its system of Zakat and Waqf.

8) This judgment of the Supreme Court also places women in a precarious position. In a troubled marriage, the fear of paying alimony can make a husband resistant to the idea of a divorce, and may even lead to more cases of desertion or abandonment.

9) The Constitution of India has granted freedom to all religious minorities to practice their own religion with their own personal laws. Any change in the law or its interpretation which alters the basic structure of the Muslim Personal Law framework shall be unacceptable to Muslims; it shall not only be bad in law and an infringement of the fundamental rights guaranteed to all under the Constitution but also be repugnant to the principles of morality and social justice.

10) A permanent solution to this door of interference in Muslim personal law should be studied and implemented after due consultation between the government (Law Ministry), political parties and All India Muslim Personal Law Board (AIMPLB).”