Anwarulhaq Baig
NEW DELHI: The Supreme Court’s recent ruling on divorced Muslim women’s right to claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973, sparked debate on potential conflicts with existing laws protecting Muslim personal law, including the Shariat Application Act 1937 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The case arose from an appeal filed in the apex court by Mohd. Abdul Samad from Hyderabad against a Telangana High Court order, which directed him to pay monthly interim maintenance of Rs. 10,000 to his divorced wife after the – Iddat period .
The Case Details
Abdul Samad, the appellant in the SC and husband of the respondent, entered into marriage on November 15, 2012. However, their relationship soured, leading his wife to leave their marital home on April 9, 2016. Subsequently, she filed a FIR in 2017 against Abdul Samad under Sections 498A and 406 of the Indian Penal Code. In response, Abdul Samad pronounced triple talaq on September 25, 2017, seeking divorce through the office of Quzath (Darul Qazah). The divorce was granted ex parte, with the certificate issued on September 28, 2017. Abdul Samad attempted to give Rs 15,000 for the iddat period, but his wife reportedly refused and instead filed for interim maintenance under Section 125(1) of the CrPC 1973, which was granted on June 9, 2023. Abdul Samad subsequently appealed this decision to the High Court of Telangana, which resulted in the amended order on December 13, 2023. The High Court revised the earlier family court order of June 9, 2023, regarding interim maintenance, reducing the amount payable by Abdul Samad from Rs 20,000 per month to Rs 10,000 per month on December 13, 2023. In his defense before the Supreme Court, Abdul Samad argued through his counsel, Senior Advocate S. Wasim A Qadri, that Section 125 of the CrPC 1973 should not apply due to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. He contended that a divorced Muslim woman seeking relief should file under Section 5 of the 1986 Act rather than under Section 125 of the CrPC 1973. The advocate emphasized that the 1986 Act offers a more beneficial and effective remedy, asserting its precedence over the provisions of the CrPC 1973 as a special law.
The SC Observations and Ruling
Rejecting this argument, the Supreme Court bench, comprising Justices A bench of Justices B.V. Nagarathna and Augustine George Masih, emphasized the secular nature of Section 125 and its applicability across religious lines.
Justice Nagarathna, in her concurring opinion, stated, “Section 125 CrPC was introduced as a measure of social justice to protect women and children.” She highlighted that this provision “manifested the constitutional commitment under Article 15(3) of the Constitution towards special measures to ensure a life of dignity for women at all stages of their lives.”
The court recognized the societal context that often leaves divorced women financially vulnerable. Justice Nagarathna observed, “Married women often sacrifice employment opportunities to nurture the family, pursue child rearing, and undertake care work for the elderly.”
Addressing the core legal issue, Justice Masih asserted, “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.”
The judgment clarified that the 1986 Act does not supersede or nullify the provisions of Section 125 CrPC. Justice Nagarathna explained: “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… 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.”
The court emphasized that 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.”
Addressing concerns about potential conflicts between different laws, Justice Nagarathna provided a comprehensive framework for understanding their interplay:
Muslim Women (Protection of Rights on Marriage) Act, 2019 or Triple Talaq Act
The judgment also addressed the Muslim Women (Protection of Rights on Marriage) Act, 2019, commonly known as the anti-triple talaq law. Justice Nagarathna noted: “In case a woman has been divorced in a valid manner, she can approach the Magistrate under the 1986 Act, but if she has been the victim of the mischief defined under the 2019 Act, then her right to subsistence allowance is secured through Section 5 of the 2019 Act.”
Justice Nagarathna reflected on the changing perception of maintenance in Indian society: “This Court, speaking through Murtaza Fazal Ali, J. in Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkh, AIR 1981 SC 1972, had acknowledged the paradigm shift from viewing maintenance as mere charity to a matter of parity and rights, essential for women.”
The judgment also addresses financial empowerment of married women within the household:
Justice Nagarathna observed: “An Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife, who does not have an independent source of income, by making available financial resources particularly towards her personal needs; in other words, giving access to his financial resources. Such financial empowerment would place such a vulnerable wife in a more secure position in the family.”
Key Points of the Judgment Concluded by Both Judges:
The ruling, delivered through separate but concurring judgments, offers a comprehensive framework for understanding the interplay between various laws governing maintenance for Muslim women.
- Universal Applicability of CrPC Section 125: The court affirmed that Section 125 of the Code of Criminal Procedure (CrPC) applies to all married women, including Muslim women, as well as all non-Muslim divorced women.
- Special Provisions for Divorced Muslim Women: For Muslim women married and divorced under the Special Marriage Act, the court ruled that Section 125 of the CrPC applies in addition to remedies available under the Special Marriage Act.
- Options for Women Divorced Under Muslim Law: The judgment states that Muslim women married and divorced under Muslim law can seek remedy under either Section 125 of the CrPC or the Muslim Women (Protection of Rights on Divorce) Act, 1986, or both. The court emphasized that the 1986 Act complements, rather than supersedes, Section 125 of the CrPC.
- Consideration of 1986 Act Orders: If a divorced Muslim woman resorts to Section 125 of the CrPC, any order passed under the 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC.
- Application of the 1986 Act: The court clarified that a divorced Muslim woman, as defined under the 1986 Act, can file an application under this Act, which will be disposed of accordingly.
- Provisions for Illegal Divorce Under the 2019 Act: In cases of illegal divorce as per the Muslim Women (Protection of Rights on Marriage) Act, 2019:
- Women can seek relief under Section 5 of the 2019 Act for subsistence allowance or opt for Section 125 of the CrPC.
- If a woman is ‘divorced’ during the pendency of a petition under Section 125 of the CrPC, she can continue under the CrPC or file a petition under the 2019 Act.
- The 2019 Act provides remedies in addition to, not in derogation of, Section 125 of the CrPC.