SC upholds Muslim women's right to seek maintenance

The Supreme Court on Wednesday, 10 July, held that Muslim women could file a petition to claim maintenance from their divorced husbands under Section 125 of the Code of Criminal Procedure (CrPC), 1973.

The bench of justices B.V. Nagarathna and Augustine George Masih, in two separate but concurring judgements, dismissed a petition filed by a Muslim man against a direction to pay interim maintenance to his divorced wife under Section 125 of the CrPC. The court underscored that the Muslim Women (Protection of Rights on Divorce) Act, 1986, would not prevail over Section 125, which applies to all women, irrespective of their religion, and not just to married women either.

"We are dismissing the criminal appeal with the conclusion that Section 125 CrPC would be applicable to all women," stated Justice Nagarathna. The bench said that maintenance is not charity, but the right of married women and it is applicable to all married women, irrespective of their religion.

The bench also highlighted that if, during the pendency of a petition under Section 125 of the CrPC, a Muslim woman is divorced, then she can take recourse to the Muslim Women (Protection of Rights on Marriage) Act, 2019. The bench stated that the remedy under the 2019 Act is in addition to the remedy under Section 125 CrPC.

The Supreme Court was hearing an appeal by Telangana-based Mohd Abdul Samad, who had been ordered to pay maintenance of Rs 20,000 to his ex-wife by a family court in the state. The woman had moved the family court under Section 125 of CrPC, seeking maintenance and stating that Samad had invoked triple talaq. Samad, however, appealed to the high court, which directed the petitioner to pay Rs 10,000 as maintenance.

He then approached the Supreme Court, challenging the high court's order and stating that it was not in line with the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which as a Special Act would prevail over the provisions of Section 125 CrPC, which is a general Act.

The Special Act gives jurisdiction to a first-class magistrate to decide the issue of maher (bride wealth from the husband-to-be) and the payment of other subsistence allowances under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This law was enacted by the Rajiv Gandhi government and used to nullify the Supreme Court ruling in the Shah Bano case, which held that Section 125 of the CrPC is a secular provision applicable to Muslim women. Though the Muslim Women (Protection of Rights on Divorce) Act, 1986, initially nullified it, the validity of Section 125 of the CrPC was again upheld in 2001.

Section 125 of the CrPC says: '(1) If any person having sufficient means neglects or refuses to maintain — (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury, unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct.'

In September 2001, a Constitution bench of the Supreme Court had in the case Danial Latifi & Another vs Union of India upheld the constitutional validity of the 1986 Act, but the Bench questioned how it could deprive Muslim divorced women of the same right which is available to other women in the country.

During the hearing of the current case, 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."

Justice Nagarathna pointed out during the hearing that Parliament did not intend for such a restriction in framing the law as the petitioner had contended, saying that the provisions of the Act indicate Parliament's intent to bar Muslim women's entitlement to filing maintenance claims under Section 125 CrPC.

The judgement in the case was reserved on 19 February.