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12/07/24 09:57 AM IST

Supreme Court’s verdict on divorced Muslim women’s right to maintenance under Section 125 CrPC

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  • The Supreme Court recently ruled that a divorced Muslim woman is entitled to a claim of maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973, against her former husband.
Law on Maintenance
  • The law governing maintenance for destitute wives, children, and parents has been codified under Section 125 of the CrPC.
  • It stipulates that if any person “having sufficient means neglects or refuses to maintain” his wife, then a magistrate of the first class may, upon proof of such neglect or refusal, order such a person to make a monthly allowance for the maintenance of his wife at a monthly rate as the magistrate thinks fit.
  • The explanation to this provision clarifies that a “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
  • It does not specify anything about the woman’s religion. Many States have made region-specific amendments to the section to allow a ceiling on the maintenance amount the court can order.
  • The 1986 Act, on the other hand, is a religion-specific law that provides for a procedure for a Muslim woman to claim maintenance during divorce.
  • It was enacted to essentially nullify the Supreme Court’s 1985 decision in the case of Mohd. Ahmad Khan v. Shah Bano Begum (Shah Bano case) which upheld a Muslim woman’s right to seek maintenance from her divorced husband under Section 125 of the CrPC.
  • The verdict was, however, perceived by many to be an affront to religious personal laws.
  • Section 3 of the 1986 Act guarantees the payment of maintenance to a divorced Muslim woman by her former husband only during the period of iddat — a period, usually of three months, which a woman must observe after the death of her husband or a divorce before she can remarry.
  • Such an amount shall be equal to the amount of mahr or dowry given to her at the time of her marriage or any time after that.
  • After the completion of the iddat period, a woman can approach a first-class magistrate for maintenance in case she has not remarried and is not in a position to take care of herself financially.
  • A  Constitution Bench of the Supreme Court in the Danial Latifi v. Union Of India (2001) case upheld the constitutional validity of the 1986 Act by extending the right of a Muslim woman to get maintenance till she re-marries.
  • It, however, reduced the period of maintenance to the completion of iddat.
  • In 2009, a Division Bench of the top Court in Shabana Bano v. Imran Khan reiterated a divorced Muslim woman’s right to claim maintenance under Section 125 of the CrPC as long as she does not remarry.
  • It further highlighted that such a relief would be extended even after the expiry of the iddat period.
  • Similarly, in 2019, Justice Ahsan Amanullah of the Patna High Court set aside a family court order rejecting a Muslim woman’s plea for maintenance by underscoring that she has the option to avail of maintenance both under the CrPC and the 1986 Act.
  • If she chose the CrPC, she could not be said to be debarred from seeking maintenance on account of being a divorced Muslim lady.
Right of Maintenance
  • A divorced Muslim woman is not restricted from exercising her independent right of maintenance under the secular provision of Section 125 of CrPC 1973, provided she is able to prove the requisites encompassed by the said statute.
  • Thus, the passage of the 1986 Act was said to not “militate against or dilute” relief under Section 125 of the CrPC. 
  • Referring to the non-obstante clause “notwithstanding anything contained in any other law for the time being in force” envisaged under Section 3(1) of the 1986 Act — which was argued to purportedly bar any concurrent relief under Section 125 of the CrPC —Justice Nagarathna elucidated that the intent of the Parliament behind such usage was to provide an additional remedy for divorced Muslim women. 
  • Parliament did not simultaneously or at anytime thereafter create any bar for a divorced Muslim woman from claiming maintenance under Section 125 of the CrPC and thereby constrain her to proceed to make a claim only under the provisions of the 1986 Act.
  • Neither is there any bar, express or implied under the 1986 Act, to the effect that a divorced Muslim woman cannot unilaterally seek maintenance under Section 125 of the CrPC.
  • One cannot read Section 3 of the 1986 Act containing the non-obstante clause so as to restrict or diminish the right to maintenance of a divorced Muslim woman under Section 125 of the CrPC and neither is it a substitute for the latter.
  • Such an interpretation 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 of India.
  • Justice Nagarathna further clarified that Muslim women who have been divorced through illegal methods such as triple talaq are also entitled to maintenance under Section 125 of the CrPC.
  • The practice was declared unconstitutional by the Supreme Court in 2017 and later criminalised under the Muslim Women (Protection of Rights on Marriage) Act, 2019.
  • Section 125 of the CrPC cannot be excluded from its application to a divorced Muslim woman irrespective of the law under which she is divorced.
  • The same cannot be a basis for discriminating a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the CrPC or any personal or other law such as the 1986 Act.
Source- The Hindu

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