In a landmark judgment, the Supreme Court on Wednesday ruled that a divorced Muslim woman is entitled to seek maintenance from her husband under Section 125 of the Criminal Procedure Code, adding that the Muslim Women (Protection of Rights on Divorce) Act, 1986, will not prevail over the secular law.
A bench of Justices BV Nagarathna and Justice Augustine George Masih pronounced separate but concurring judgments upholding Muslim woman's right after a Muslim man (petitioner) challenged a Telangana High Court direction to pay `10,000 interim maintenance to his former wife.
"We are hereby dismissing the criminal appeal with the major conclusion that Section 125 CrPC would be applicable to all woman and not just married woman," Justice Nagarathna said pronouncing the verdict. The bench made it clear that the law for seeking maintenance applies to all married women, irrespective of their religion.
Maintenance is not a matter of charity but a fundamental right of married women, the court said. "This right transcends religious boundaries, reinforcing the principle of gender equality and financial security for all married women," it added.
“Section 125 of the erstwhile CrPC, which deals with a wife's legal right to maintenance, covers Muslim women. Section 125 of the CrPC applies to all non-Muslim divorced women. Insofar as divorced Muslim women are concerned; Section 125 of the CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act in addition to remedies available under the Special Marriage Act,” the bench said.
“If Muslim women are married and divorced under Muslim law then Section 125 of the CrPC as well as the provisions of the 1986 Act are applicable. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws. This is because the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision. If Section 125 of the CrPC is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC,” the bench said.
“In case of an illegal divorce as per the provisions of the 2019 Act then, i) relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed. ii) If during the pendency of a petition filed under Section 125 of the CrPC, a Muslim woman is ‘divorced’ then she can take recourse under Section 125 of the CrPC or file a petition under the 2019 Act. iii) The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC,” read the order.
“The Muslim Women (Protection of Rights on Divorce) Act, 1986 will not prevail over the secular and religion neutral provision of Section 125 of CrPC,” the bench said while stressing that maintenance is not charity but the right of all married women.
The Supreme Court's judgement pertains to the case ‘Mohd Abdul Samad vs State of Telangana and Anr’, in which the petitioner (the husband) raised grievances over the filing of claims seeking maintenance from his former wife, whom he got a divorce in 2017.
The Supreme Court had in a landmark judgment in the Shah Bano case held that Section 125 CrPC is a secular provision applicable to Muslim women too. The same was however nullified by the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the validity of the law was upheld in 2001.
Initially, a family court had directed Abdul Samad to pay an interim maintenance of ?20,000 per month to his ex-wife. However, he challenged this decision before the Telangana high court on the grounds that the couple was divorced as per the Muslim personal law. According to the petitioner, a divorced Muslim woman is not entitled to claim any alimony under Section 125 CrPC in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986, reported Bar and Bench. Following this, the high court reduced the maintenance to Rs 10,000 per month. The petitioner husband, then, approached the Supreme Court challenging the high court's decision.
