The Supreme Court in the case of Mohd. Abdul Samad Vs State of Telangana on July 10, 2024, passed a landmark decision pertaining to married and divorced Muslim women. A two-judge Bench of Justices BV Nagarathna and George Masih reiterated that a Muslim woman is entitled to seek maintenance from her husband under Section 125 of the CrPC even if they were divorced under religious personal law.
This judgement marks what we can call a complete circle from the Supreme Court ruling in the Shah Bano case in 1985 (Mohd Ahmed Khan vs Shah Bano Begum), following which the erstwhile Government came up with the Muslim Women (Protection of Rights on Divorce) Act of 1986 (MWA).
The issue now decided by the Supreme Court dealt with the question whether after the MWA 1986 came into force, the divorced Muslim woman cannot file an application under Section 125 of the CrPC. There was chaos on the position of law in this regard given various High Courts had given contradictory rulings over the past decades. The Supreme Court’s decision has settled the position of law by holding that the new Act has not extinguished the divorced Muslim woman’s rights under the beneficial provision of Section 125 of the CrPC.
Section 125 of the CrPC mandates that “any person having sufficient means” to maintain “his wife” or “his legitimate or illegitimate minor child” if they are unable to maintain themselves through monetary support at regular intervals. The explanation in the section clarifies that the word “wife” also includes a divorced woman who has not remarried. Whereas, Section 3 of the 1986 Act deals with “mahr or other properties of Muslim woman to be given to her at the time of divorce”.
Background & Factual Matrix
An estranged Muslim woman, who had to leave her matrimonial home, initiated criminal proceedings against her husband by lodging FIR for cruelty. The husband pronounced a triple talaq on 25.09.2017 and moved a Criminal Appeal for divorce before the office of Quzath seeking a declaration of divorce, which was eventually granted in absence of the wife, and the divorce certificate was issued.
flag-bearers of feminism and the intellectuals of the community fail to stand for the estranged and divorced Muslim women
The wife moved a petition for interim maintenance under Section 125(1) of the CrPC before the Family Court, which was allowed vide Order dated 09.06.2023. The Family Court ordered the husband to pay an interim maintenance of Rs. 20,000 per month to his divorced wife. Telangana High Court on a petition by the husband modified the amount to Rs. 10,000 per month. The husband filed an appeal against the order before the Supreme Court which was decided in the instant matter.
Husband’s Contention
The husband’s case was that in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (‘1986 Act’), a divorced Muslim woman is not entitled to file a petition under Section 125 of the CrPC and must proceed under the provisions of the 1986 Act. It was submitted that the said Act provides a more beneficial and efficacious remedy for divorced Muslim women in contradistinction to Section 125 of CrPC, thereby the recourse lies exclusively under the 1986 Act, and that the same being a special law, prevails over the provisions of CrPC, which is a general law.
What High Courts Have Held?
On one hand, there were decisions that held that remedy was to be exclusively exercised under Section 3 of the 1986 Act, implying that the rights under the secular provisions under Section 125 of CrPC 1973 were not available to a Muslim divorced woman. On the other hand, there was a view that allowed a divorced Muslim woman to seek remedy of maintenance under Section 125 of CrPC 1973 while explicit existence of Section 3 of the 1986 Act was recognised.
Analysis And Findings
Justice Augustine George Masih said that the Parliament, by introducing Section 125 of CrPC 1973, sought to carry on the efficacious remedy through a summary procedure in favour of a wife, including a divorced woman, and others as applicable. He reiterated that the enactment of the said provision charges the court with a deliberate secular design to enforce maintenance or its equivalent against the humane obligation, which is derived from the State’s responsibility for social welfare and it is not confined to members of one religion or region, but the whole community of womanhood.
Justice Masih said that the 1986 Act sought to specify the entitlements of a divorced woman at the time of divorce. Upon perusal of the relevant provisions, Justice Masih added that under Section 3 of the 1986 Act, the 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, whereas, under Section 125 of CrPC 1973, a woman seeking maintenance has to establish that she is unable to maintain herself.
The right to seek maintenance under Section 125 of CrPC 1973 is invokable even during the sustenance of marriage and, thereby is not contingent upon divorce. Justice Masih noted that a beneficial interpretation needs to be adopted so that the non-obstante clause in the 1986 Act, in no manner bars the remedy under Section 125 of CrPC 1973.
Justice Masih finally held that equivalent rights of maintenance ascertained under both, the secular provision of Section 125 of CrPC 1973, and the personal law provision of Section 3 of the 1986 Act, parallelly exist in their distinct domains and jurisprudence, thereby, leading to their harmonious construction and continued existence of the right to seek maintenance for a divorced Muslim woman under the provisions of CrPC 1973 despite the enactment of the 1986 Act.
Providing Social Justice
Justice Nagarathna agreed with Justice Masih’s views and reasoning and held that Section 125 of the CrPC is a measure of social justice with a view to protect women and children and is aligned to the salutary object enshrined in Article 15(1) and (3) read with Article 39(e) of the Constitution. The statutory right to seek maintenance under Section 125 of the CrPC is also embedded in the text, structure and philosophy of the Constitution. The Constitution provides special measures to ensure a life of dignity for women at all stages of their lives, irrespective of the faith a woman belongs to.
She also said that Section 125 of the CrPC intends to provide for a speedy remedy and prevent vagrancy by compelling the husband to support the wife. If the husband refuses or neglects to maintain the wife, she is legally entitled to enforce the said right by filing a petition under Section 125 of the CrPC irrespective of any other right created in favour of the wife under any other law. Hence, the passing of the 1986 Act, 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 Judge reiterated that maintenance seeks to alleviate the financial stress and vulnerability of the impecunious woman who is dependent on her husband economically. It is a constitutional imperative to redress the vulnerability of a married woman which includes a divorced woman who does not have an independent source of income. She also remarked that married women sacrifice employment opportunities to nurture the family, pursue childcare, and undertake elderly care.
While interpreting the 1986 Act, she held that the intent of the Parliament was to enhance the right of a divorced Muslim woman in addition to what she would have been entitled under ordinary law. Further, the Parliament did not 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. Thus, it was held that in spite of an option of seeking maintenance under the 1986 Act, Section 125 of the CrPC is applicable to a divorced Muslim woman. The rights created under the provisions of the 1986 Act are in addition to and not in derogation of the right created under Section 125 of the CrPC.
Parting Words
As rightly held by the Division Bench, the domains occupied by the two provisions are entirely different as the secular provision of Section 125 of CrPC (now Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023) stipulates an inability to maintain oneself for invoking the said rights while Section 3 of the 1986 Act stands independent of one’s ability or inability to maintain. Many times, social change warrants a change in law and quite often legal change precedes social change. From Shah Bano to Shahyara Bano, much water has already flown and the judiciary has steadfastly stood for the rights of Muslim Women, but the change in society is yet to be visible with respect to the condition
of Muslim women.
Surprisingly, the flag-bearers of feminism and the intellectuals of the community who are otherwise vocal and vociferously raise their voices for the rights of the ‘marginalised’ minorities, fail to stand for the estranged and divorced Muslim women.
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