Divorced Muslim women entitled to maintenance under CrPC: Supreme Court

The Supreme Court on Wednesday held that divorced Muslim women are entitled to maintenance under the ‘secular’ Section 125 of the Code of Criminal Procedure.

A separate but concurring judgment by a two-judge Bench of Justices BV Nagarathna and Augustine George Masih came on an appeal filed by a Muslim man challenging a Telangana High Court decision upholding though modifying a Family Court order allowing his divorced wife interim maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Mohd. Abdul Samad, in his appeal, said his wife had to exclusively take recourse under the Muslim Women (Protection of Rights on Divorce) Act, 1986 rather than Section 125 CrPC. He argued that the 1986 Act was a special law and overrode the CrPC provision. He contended that a divorced Muslim woman’s application for maintenance under Section 125 was not maintainable.

However, the apex court agreed with amicus curiae, senior advocate Gaurav Agrawal, that a remedy under the secular statutory provision of Section 125 of CrPC 1973 cannot be foreclosed for divorced Muslim women by virtue of enactment of a personal law remedy under the 1986 Act. A divorced Muslim woman is entitled to all the rights of maintenance available to other equally situated women in the country.

Besides, the court pointed out that Section 3 of the 1986 Act requires a man to provide for a “reasonable and fair provision of maintenance” to his divorced Muslim wife only during the iddat period. Once the iddat period expires, the personal law obligation to maintain the divorced Muslim woman ceases.

On the other hand, Section 125 mandates a husband to provide monthly maintenance to his divorced wife, irrespective of her faith. “Any divorced wife who has not remarried is entitled to maintenance by her ex- husband who has sufficient means but has neglected or refused to maintain her,” Justice Nagarathna pointed out.

Further, the 1986 Act holds a Muslim man liable to pay his divorced wife maintenance for their children for only a period of two years from their birth dates. Whereas Section 125 requires a husband is obliged to pay for their children till they attain the age of majority.

Again, there is no upper limit fixed for payment of maintenance under Section 125, making it a more beneficial provision compared to the 1986 law.

Volation of Article 15(1)

“If Section 125 of the CrPC is excluded from its application to a divorced Muslim woman, it would be in violation of Article 15(1) of the Constitution of India which states that the State shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth… The remedy of maintenance is a critical source of succour for the destitute, the deserted and the deprived sections of women,” Justice Nagarathna noted.

Justice Masih, in his opinion, said Section 125 manifested the constitutional commitment towards special measures to ensure a life of dignity for women at all stages of their lives irrespective of their faith.

He observed that Section 125 and the 1986 Act were not at loggerheads with each other. The 1986 Act did not extinguish the right of a divorced Muslim woman, who is unable to maintain herself, to seek maintenance under Section 125. The choice is left to the Muslim woman to apply for maintenance either under Section 125 or the 1986 Act. If a Muslim woman is unable to maintain herself, she could apply for maintenance under Section 125. If, on the other hand, she is able to take care of herself financially, she could very well seek maintenance under the 1986 Act till the expiry of the iddat period. Courts have to give both laws a harmonious and purposive interpretation, Justice Masih observed.

“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,” the judgment, dismissed Samad’s arguments.