New Delhi: The Supreme Court Wednesday held that a Muslim woman can demand maintenance from her husband under Section 125 of the Code of Criminal Procedure (CrPC) as well as the Muslim Women (Protection of rights on Divorce) Act, 1986.
The judgment was passed by a bench comprising Justices B.V. Nagarathna and Augustine George Masih. The two judges pronounced separate but concurring judgments, affirming that Section 125 of the CrPC applies to all married women, including Muslim.
The Supreme Court, in the 1985 Shah Bano case, had declared that Section 125 of the CrPC, which deals with maintenance, applies to all citizens irrespective of religion. The issue was highly politicised, with then prime minister Rajiv Gandhi overturning the effect of the apex court decision by passing the 1986 Act, which restricted maintenance to divorced Muslim women to the first ‘iddat’ (the period of waiting that follows the dissolution of a Muslim marriage) period.
The questions before the court now pertained to the interplay between a Muslim woman’s right to seek recourse under Section 125, and the 1986 law.
The court concluded, “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.”
It clarified that in a case where a husband has fulfilled his obligations under Section 3 of the 1986 law, or as provided by customary or personal law, the divorced Muslim woman can still subsequently invoke Section 125 on the ground that she is unable to maintain herself.
The court also spoke about a case of an illegal divorce under the Muslim Women (Protection of Rights on Marriage) Act, 2019, which prohibited triple talaq. Section 5 of this law talks about “subsistence allowance” and says that a married Muslim woman who has been given triple talaq or any other instant talaq is entitled to receive subsistence allowance for her and dependent children.
The court now explained that in such a situation, the woman can seek relief under Section 5 of the 2019 law, or under Section 125 of the CrPC.
In his judgment, Justice Masih explained that Section 125 “is a measure for social justice to protect the weaker sections, irrespective of applicable personal laws of the parties”.
Meanwhile, Justice Nagarathna also spoke about the vulnerability of married women who do not have an independent source of income or who have access to monetary resources in their households, particularly for personal expenses.
Asserting that maintenance is “a facet of gender parity and enabler of equality, not charity”, Justice Nagarathna said in her opinion, “the passing of the 1986 Act, in my view, cannot militate against or dilute the salutary nature of Section 125 of the CrPC. The object of this provision is to save a wife, including a divorced woman, from deprivation and destitution.”
The court was hearing an appeal filed by a Muslim man who challenged an order passed by the Telangana High Court directing him to pay Rs 10,000 interim maintenance per month to his former wife. The family court had earlier fixed Rs 20,000 as interim maintenance.
The SC also ruled that if, during the pendency of the application under Section 125 the Muslim woman gets divorced, then she can take recourse to the 2019 Act.
The Shah Bano controversy
The 1985 Shah Bano judgment was a landmark decision in India’s constitutional history. It involved complicated questions about the role of a secular state in matters of religion, as well as the intersection of religious principles and individual Constitutional and fundamental rights.
However, soon after the judgment, the then Rajiv Gandhi government passed the Muslim Women (Protection of rights on Divorce) Act, 1986.
Section 3 of this law talks about ‘mahr’, or other properties of Muslim women to be given to her at the time of divorce. It says that “notwithstanding anything contained in any other law for the time being in force”, a divorced Muslim woman would be entitled to maintenance paid to her within the ‘iddat’ period. She was also to be paid an amount equal to the sum of ‘mahr’, or dower agreed to be paid to her at the time of her marriage or at any time afterwards according to Muslim law.
After this law was passed, several petitions were filed challenging its Constitutional validity before the Supreme Court, on the ground that it violates Articles 14, 15 and 21 of the Constitution.
In a judgment passed in September 2001, the SC upheld the Constitutional validity of the law, but interpreted it to mean that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the ‘iddat’ period.
“There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of making the decision in Shah Bano’s case ineffective,” the 2001 judgment had said.
However, the high courts then took varied views. The first view was that the remedy for a Muslim woman has to be exclusively exercised under Section 3 of the 1986 Act, while a few other judgments allowed a divorced Muslim woman to seek the remedy of maintenance under Section 125.
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What has SC ruled
In his opinion, Justice Masih now opined that the legislature never sought to restrict the rights of a divorced Muslim woman to ‘iddat’ period while enacting the 1986 law.
“Rather, by virtue of the introduction of Section 3 of the 1986 Act in this socio-beneficial legislation, the idea was to confer the benefit of maintenance as well as a reasonable and fair provision for the lifetime of a divorced Muslim woman, subject to her remarriage,” he explained.
The judge also highlighted provisions of Section 127 of the CrPC, which allows alteration in allowance payable to a woman, explaining that when an order has been made under Section 125 in favour of a divorced woman, the court can cancel such an order if the woman has received an amount payable to her under any customary or personal law applicable to the parties.
The court then explained a scenario when a divorced Muslim woman initially moves a petition under Section 125 seeking maintenance and exercises her rights under Section 3 of the 1986 Act, after getting maintenance under Section 125.
In such a case, it said that if the husband fulfils his concerned obligations ensuring her future maintenance, he can approach the court under Section 127 seeking cancellation of the order first passed in her favour under Section 125.
It also explained that in a case where a husband has fulfilled his obligations under Section 3 of the 1986 law, or as provided by customary or personal law, the divorced Muslim woman can subsequently invoke Section 125 on the ground that she is unable to maintain herself. When a husband opposes such an application, he has to establish that (a) his initial obligations under the customary or personal laws are fulfilled, and (b) that the wife, in the light of this, is able to maintain herself.
The court clarified that if a “reasonable substitute” was provided for by the husband as per their personal or customary laws at the time of their divorce, the maintenance provided for by a Magistrate or a Family Court under Section 125 can be reduced accordingly.
As regards the 2019 law, Justice Nagarathna explained that “the intent of Parliament is clear: it seeks to provide adequate remedies to women from economic deprivation that may result from marital discord, irrespective of their status as a married or divorced woman.”
Talking about the impact of an illegal talaq, the court observed, “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.”
A parallel existence
In his opinion, Justice Masih highlighted that the purpose of Section 125 “has been spelt out to prevent vagrancy and destitution of the person claiming rights through invoking the procedure established under the said provision.”
He elaborated on the Shah Bano case, as well as the judgments that came after it. He then highlighted the distinctions between Sections 3 of the 1986 law and Section 125 of the CrPC.
The judge pointed out that under Section 3, entitlements or rights of a divorced Muslim woman — wider than the ambit of maintenance — arise as against the obligations of her former husband emanating from their divorce. As against this, under Section 125, a woman has to establish that she is unable to maintain herself, and Section 125 can be invoked even during the sustenance of marriage and is not contingent on divorce.
He then concluded that the two provisions “parallelly exist in their distinct domains and jurisprudence”, and lead to continued existence of the right to seek maintenance for a divorced Muslim woman under the provisions of Section 125, despite enactment of the 1986 law.
Justice Nagarathna, in her opinion, asserted that Section 3 of the 1986 law cannot be read as to restrict or diminish the right to maintenance of a divorced Muslim woman under Section 125.
Such interpretation, she said, “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.”
Article 14 guarantees equality before law, while Article 15 guarantees a right against discrimination. Article 39(e) says that the State shall direct its policy towards securing “that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”.
What was the case before SC
The couple in this case had tied the knot in November 2012. However, the wife left the matrimonial home in April 2016, after their relationship deteriorated. She then initiated criminal proceedings against the husband for offences under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty) and 406 (criminal breach of trust) of the IPC. In response, her husband pronounced triple talaq in September 2017 and approached the office of Quzath seeking a declaration of divorce. A divorce certificate was then issued in September 2019.
His wife then approached the family court for maintenance under Section 125 of the CrPC, after rejecting his Rs 15,000 maintenance for the ‘iddat’ period.
In June 2023, her maintenance application was allowed by the family court, which fixed Rs 20,000 as interim maintenance per month. He approached the HC challenging this order. The high court, in December last year, passed an order upholding the family court order but reducing the maintenance amount.
He then approached the Supreme Court, and asserted that the provisions of Section 125 would not apply in his case because of the enactment of the 1986 Act.
However, amicus curiae, senior advocate Gaurav Agrawal, had submitted that the secular statutory provision of Section 125 of CrPC is not foreclosed for a divorced Muslim woman due to the 1986 law, because the latter does not bar the exercise of the former remedy.
The top court Wednesday affirmed the high court judgment.
(Edited by Tony Rai)
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