Decoding Supreme Court’s verdict on divorced Muslim women’s right to maintenance under Section 125 CrPC

In a landmark ruling, the top Court opined that relief under Section 125 CrPC is a social security measure that operates independently of any Muslim personal law remedies. What are the key takeaways?

Updated - July 11, 2024 06:47 pm IST

Published - July 10, 2024 10:06 pm IST

A group of Muslim women walk by a poster advocating for girls’s education.

A group of Muslim women walk by a poster advocating for girls’s education. | Photo Credit: AFP

The story so far: The Supreme Court on July 10 ruled that a divorced Muslim woman is entitled to a claim of maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973, against her former husband — affirming that a parallel remedy under a secular law cannot be foreclosed by existing personal laws.

A bench of Justices B.V. Nagarathna and Justice Augustine George Masih pronounced separate but concurring judgments upholding the rights of Muslim women after a Muslim man challenged a Telangana High Court direction to pay ₹10,000 interim maintenance to his former wife. He had contended that the maintenance claim in his case would instead be governed by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act).

Read the verdict here.

How has the law on maintenance 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 (Shah Bano case) 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 top Court in Shabana Bano v. Imran Khan 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 was the case?

The top 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.

In June 2023, the Hyderabad family court ordered that ₹20,000 interim maintenance be given to 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 High 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 does the verdict say?

‘Social justice’ measure insulated from applicable personal laws

The Bench at the outset acknowledged that Section 125 CrPC was introduced as a measure of social justice to protect women and children. It pointed out that the provision manifested the constitutional commitment under Article 15(3) towards special measures to ensure a life of dignity for women at all stages of their lives.

Highlighting the secular nature of this relief, the judges underscored that a claim under Section 125 CrPC is maintainable irrespective of the applicable personal laws of the parties. “...This ought to be irrespective of the faith a woman belongs to. The remedy of maintenance is a critical source of succour for the destitute, the deserted and the deprived sections of women. There can be no manner of doubt that it is an instantiation of the constitutional philosophy of social justice that seeks to liberate the Indian wife including a divorced woman from the shackles of gender-based discrimination, disadvantage and deprivation,” Justice Nagarathna asserted. She further recognised that married women often sacrifice employment opportunities to nurture the family, pursue child rearing, and undertake care work for the elderly.

““...an Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife, who does not have an independent source of income, by making available financial resources particularly towards her personal needs; in other words, giving access to his financial resources. Such financial empowerment would place such a vulnerable wife in a more secure position in the family. Those Indian married men who are conscious of this aspect and who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged.”Justice B.V. Nagarathna Mohd. Abdul Samad v. The State of Telangana [2024]

Equivalent rights of maintenance 

After referring to a catena of judicial precedents, the Bench concluded that equivalent rights of maintenance under both — the secular provision of Section 125 of the CrPC and the personal law provision of Section 3 of the 1986 Act, parallelly exist in their distinct domains and jurisprudence. “A divorced Muslim woman is not restricted from exercising her independent right of maintenance under the secular provision of Section 125 of CrPC 1973, provided she is able to prove the requisites encompassed by the said statute,“ Justice Masih opined. Thus, the passage of the 1986 Act was said to not “militate against or dilute” relief under Section 125 of the CrPC.

Referring to the non-obstante clause “notwithstanding anything contained in any other law for the time being in force” envisaged under Section 3(1) of the 1986 Act — which was argued to purportedly bar any concurrent relief under Section 125 of the CrPC —Justice Nagarathna elucidated that the intent of the Parliament behind such usage was to provide an additional remedy for divorced Muslim women.

“This is evident from the fact that while enacting the 1986 Act, Parliament did not simultaneously or at anytime thereafter create any bar for a divorced Muslim woman from claiming maintenance under Section 125 of the CrPC and thereby constrain her to proceed to make a claim only under the provisions of the 1986 Act. Neither is there any bar, express or implied under the 1986 Act, to the effect that a divorced Muslim woman cannot unilaterally seek maintenance under Section 125 of the CrPC. One cannot read Section 3 of the 1986 Act containing the non-obstante clause so as to restrict or diminish the right to maintenance of a divorced Muslim woman under Section 125 of the CrPC and neither is it a substitute for the latter. Such an interpretation would be regressive, anti-divorced Muslim woman and contrary to Articles 14 and 15(1) and (3) as well as Article 39(e) of the Constitution of India,” the judge reasoned.

Harmonious interpretation

Advocating for a harmonious and purposive interpretation of the seemingly conflicting statutes, the Court said that the choice lies with the Muslim woman to apply for maintenance either under Section 125 of the CrPC or the 1986 Act. If she is unable to provide for herself, she can seek remedy under Section 125. Alternatively, if she is financially independent, she can seek maintenance under the 1986 Act till the expiry of the iddat period.

“The Parliament did not simultaneously, or at any time, thereafter, create any bar for a divorced Muslim woman from claiming maintenance under Section 125 CrPC, and thereby constrain her to proceed to make a claim only under the provisions of the 1986 Act… If a divorced Muslim woman approaches the Magistrate for enforcement of her rights under Section 125 CrPC, she cannot be turned away to seek relief only under the 1986 Act. In other words, a divorced Muslim woman is entitled to seek recourse to either or both the provisions. The option lies with the woman,” Justice Masih observed.

Muslim women divorced through triple talaq entitled to relief

Justice Nagarathna further clarified that Muslim women who have been divorced through illegal methods such as triple talaq are also entitled to maintenance under Section 125 of the CrPC. The practice was declared unconstitutional by the Supreme Court in 2017 and later criminalised under the Muslim Women (Protection of Rights on Marriage) Act, 2019.

“Section 125 of the CrPC cannot be excluded from its application to a divorced Muslim woman irrespective of the law under which she is divorced... The same cannot be a basis for discriminating a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the CrPC or any personal or other law such as the 1986 Act,” the judge reasoned.

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