The Supreme Court has decided to examine if a divorced Muslim woman is entitled to a claim of maintenance under Section 125 of the Criminal Procedure Code (CrPC) against her former husband — reigniting the debate on whether secular laws should be given precedence over distinct personal laws.
On February 19, a bench comprising Justices BV Nagarathna and Augustine George Masih reserved its verdict in the case.
The dispute arose after a Muslim man challenged a Telangana High Court direction to pay ₹10,000 interim maintenance to his former wife. He contended that maintenance in this case will instead be governed by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act). Earlier, the court had appointed senior advocate Gaurav Agrawal as amicus curiae to assist in the matter.
How has the law evolved?
The law governing maintenance for destitute wives, children, and parents has been codified under Section 125 of the CrPC. It stipulates that if any person “having sufficient means neglects or refuses to maintain” his wife, then a magistrate of the first class may, upon proof of such neglect or refusal, order such a person to make a monthly allowance for the maintenance of his wife at a monthly rate as the magistrate thinks fit.
The explanation to this provision clarifies that a “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. It does not specify anything about the woman’s religion. Many States have made region-specific amendments to the section to allow a ceiling on the maintenance amount the court can order.
The 1986 Act, on the other hand, is a religion-specific law that provides for a procedure for a Muslim woman to claim maintenance during divorce. It was enacted to essentially nullify the Supreme Court’s 1985 decision in the case of Mohd. Ahmad Khan v. Shah Bano Begum which upheld a Muslim woman’s right to seek maintenance from her divorced husband under Section 125 of the CrPC. The verdict was, however, perceived by many to be an affront to religious personal laws.
Section 3 of the 1986 Act guarantees the payment of maintenance to a divorced Muslim woman by her former husband only during the period of iddat — a period, usually of three months, which a woman must observe after the death of her husband or a divorce before she can remarry. Such an amount shall be equal to the amount of mahr or dowry given to her at the time of her marriage or any time after that. After the completion of the iddat period, a woman can approach a first-class magistrate for maintenance in case she has not remarried and is not in a position to take care of herself financially.
Subsequently, a Constitution Bench of the Supreme Court in the Danial Latifi v. Union Of India (2001) case upheld the constitutional validity of the 1986 Act by extending the right of a Muslim woman to get maintenance till she re-marries. It, however, reduced the period of maintenance to the completion of iddat.
In 2009, a Division Bench of the Supreme Court reiterated a divorced Muslim woman’s right to claim maintenance under Section 125 of the CrPC as long as she does not remarry. It further highlighted that such a relief would be extended even after the expiry of the iddat period.
Similarly, in 2019, Justice Ahsan Amanullah of the Patna High Court set aside a family court order rejecting a Muslim woman’s plea for maintenance by underscoring that she has the option to avail of maintenance both under the CrPC and the 1986 Act. If she chose the CrPC, she could not be said to be debarred from seeking maintenance on account of being a divorced Muslim lady, the order added.
What is the current case?
The court was dealing with an appeal by a man named Mohd. Abdul Samad, whose former wife had approached a family court in Hyderabad alleging that he had given her ‘triple talaq’ and claimed a monthly maintenance of ₹50,000 under Section 125 of the CrPC.
The husband on the other hand contended that the provisions of the 1986 Act, being a special law, would prevail over Section 125 of the CrPC. He argued that the 1986 Act gives jurisdiction to the First-Class Magistrate to decide the issue of mahr and payment of other subsistence and thus relief cannot be sought before the family court. He further pointed out that he had already paid ₹15,000 to his former wife during the iddat period.
He also apprised the court that the wife did not file any affidavit before the magistrate saying that she prefers the CrPC provisions over the 1986 Act, in accordance with Section 5 of the latter.
In June 2023, the Hyderabad family court ordered ₹20,000 interim maintenance for the wife. On appeal, the Telangana High Court in December 2023 reduced the interim maintenance to ₹10,000. Fifty percent of the arrears were ordered to be paid by January 24, 2024, and the remaining by March 13, 2024. Without delving into any questions of law, the Court observed that “several questions are raised which need to be adjudicated.” It also directed the family court to dispose of the main plea within six months.
What happened during the proceedings?
The apex court pointed out that Section 3 of the 1986 Act begins with a non-obstante clause (“notwithstanding anything contained in any other law for the time being in force”), and thus it does not bar an alternative remedy under Section 125 of the CrPC.
Mr. Agrawal, the amicus, agreed with this observation as well. He also submitted that the question of whether the 1986 Act takes away the right under Section 125 of the CrPC was not dealt with by the Constitution bench in Danial Latifi and thus there is a requirement of an authoritative pronouncement in this regard.
“However, the observations in paragraph 33 of the judgment suggest that the 1986 Act has to be interpreted in such a manner that the divorced Muslim woman is entitled to all rights of maintenance as are available to other divorced women in the country. Consequently, the rights of divorced women cannot be taken away only from one section of divorced women of our country, lest it infringe Articles 14, 15, and 21 of the Constitution. Thus, the validity of the 1986 Act was upheld with this understanding that the 1986 Act does not seek to treat Muslim divorced women any less favourably than other divorced women,” he elucidated.
The judges further highlighted that if in this case, the husband had paid a certain amount to the wife during the iddat period, then the bar under Section 127(3)(b) of the CrPC may have come into play.
Dismissing the petitioner’s argument that the provisions of the 1986 Act reflect the Parliament’s intent to debar Muslim women from seeking relief under Section 125 of the CrPC, the court asserted that if that were the case then the legislators would have explicitly given an overriding effect to the 1986 Act.
“The Act does not say no petition under Section 125 shall be filed by Muslim women. They should have said that. In the absence of such a thing, can we add the restriction to the Act? That is the point,” Justice B V Nagarathna, presiding over the bench emphasised.
What do prior judicial precedents say?
In a plethora of judgments recently such as Arshiya Rizvi v. State of U.P. and Anr (2022), Razia v. State of U.P. (2022), and Shakila Khatun v. State of U.P (2023), the Allahabad High Court has reaffirmed a divorced Muslim woman’s right to claim maintenance under Section 125 of the CrPC even after the completion of the iddat period as long as she does not marry.
In Mujeeb Rahiman v. Thasleena (2022), a single judge of the Kerala High Court observed that a divorced Muslim woman can seek maintenance under Section 125 of the CrPC until she obtains relief under Section 3 of the 1986 Act. Such an order will remain in force until the amount payable under Section 3 is paid.
Taking a differing stance, Justice A. Badharudeen of the Kerala High Court in Noushad Flourish v. Akhila Noushad (2023), ruled that a Muslim wife who effected her divorce by the pronouncement of khula (divorce at the instance of, and with the consent of the wife) cannot claim maintenance from her husband under Section 125 of the CrPC. “When the wife effects divorce by khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C,” the judge reasoned.
