Can Muslim Women Claim Maintenance Under Section 125 CrPC? SC Rules

The Supreme Court of India has given its ruling on whether divorced Muslim women are entitled to maintenance under CrPC Section 125 or not. The court said it is a divorced Muslim woman's choice to claim maintenance under Section 125. The Muslim Women (Protection of Rights on Divorce) Act has no provision stating that Section 125 is not maintainable.  This case came to light when a Muslim man, Mohd Abdul Samad, wrote a petition to the court against a Family Court's direction to pay interim maintenance to his divorced wife. 

As per the reports, a bench of Justices BV Nagarathna and Augustine George Masih heard the case in which a Family Court directed a Muslim husband to pay interim maintenance of Rs 20,000 per month to his divorced wife under Section 125 CrPC. The wife had moved the Family Court to claim maintenance under the section. Samad had given triple talaq to his wife. 

The submissions or contentions of the advocate representing the husband

Senior Advocate S Wasim A Qadri, who appeared for the petitioner-husband, raised many questions against the applicability of Section 125 in the presence of the Muslim Women Act. Qadri said that the Muslim Women Act is a special act that provides way more than Section 125 CrPc. Apart from maintenance, the Act also has provisions for mehr, dower and return of property. 

He further said that the Act is a complete code in itself and the reading of its provisions will show that it was made with an intention to override Section 125 CrPc. Stating that the Muslim Woman Act is a special act, Qadri said that it should prevail over general law. He also said that Muslim women cannot resort to both the laws and seek remedies. Section 5 of the Act allows a divorced couple to choose to not be governed by the Act. 

He concluded by saying that if parliament intended to allow Muslim women to file petitions under Section 125 CrPc, there would have been no need for the special act. “Parliament is conscious of the provisions of Section 125. Parliament cannot create confusion. This is the presumption — that Parliament knows that alternate law is there even when this law has been framed,” Qadri said. 

The contentions made by the advocate of the divorced Muslim woman

On the other hand, Senior advocate Gaurav Agrawal who was representing the divorced woman said that the Act does broaden the entitlement of a divorced Muslim woman to claim maintenance beyond the iddat period but it doesn't take away the relief that is provided to divorced women within Section 125 CrPc. 

He quoted a case of Danial Latifi v. Union of India and said, "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 would 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." 

The court's judgement 

After hearing both advocates, Justice Masih said, "This Act does not bar...it is the choice of the person who had applied or moved an application under 125...there is no statutory provision provided under the Act of 1986 which says that 125 is not maintainable". 

Both the judges were of the view that there was nothing in the 1986 Act that barred one remedy in favour of the other. 

Opposing the view that the parliament on the enactment of the 1986 Act intended to extinguish the rights of Muslim divorced women to file petitions under Section 125 CrPc, the court said that the parliament is supposed to make a clarification about it in proper language. The court added, "Parliament must have been aware that when the 1986 Act was enacted, a number of orders must have passed in favour of divorced Muslim women under Section 125. A message appears to us to be loud and clear...Both rights, under Section 125 of the Code and Section 3 were conferred on the divorced women. She has the right to choose."

What did the High Court say?

When the Family Court ordered Samad to pay maintenance, he filed a petition at the Telangana High Court. The husband claimed that he divorced his wife in 2017 based on personal laws and there was a divorce certificate too which was not considered by the Family Court. 

However, the High Court upheld the direction of paying the interim maintenance. But it reduced the amount from Rs 20,000 a month to Rs 10,000 a month. The court directed that the amount of maintenance should be paid from the date of the filing of the petition. The court also ordered that fifty per cent of the arrears or the money that was supposed to be paid till now must be paid by the husband by January 24, 2024. The rest of the amount should be cleared by March 13, 2024. 

The man's petition to the Supreme Court

Consequently, the husband approached the Supreme Court saying that a divorced Muslim woman is not entitled to maintenance under Section 125 CrPC. He added that Muslim women should abide by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 Act which is more beneficial to them. 

The husband further alleged in the petition that he paid Rs 10,000 to his divorced wife during the iddat period. He also challenged his wife's move to approach Family Court and preferring Section 125 CrPC over the 1986 Act by saying that no affidavit was submitted declaring the preference which is mandated in Section 5 of the Muslim Women (Protection of Rights on Divorce) Act. 

Subsequently, the Supreme Court has appointed Senior Advocate Gaurav Agarwal to look into the case and provide assistance until the next hearing on February 19, 2024.