Maintenance Is Not Charity; Muslim Women Also Have Right To Seek It U/S.125 CrPC: Supreme Court

The Bench of Justice BV Nagarathna and Justice Augustine George Masih, while dismissing the appeal of the Appellant-husband, held as follows: "Section 125 of the CrPC applies to all married women including Muslim married women - Section 125 of the CrPC applies to all non-Muslim divorced women- 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. This is because the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision. If Section 125 of the CrPC is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC. -The 1986 Act could be resorted to by a divorced Muslim woman, as defined under the said Act, by filing an application thereunder which could be disposed of in accordance with the said enactment. - In case of an illegal divorce as per the provisions of the 2019 Act then, i) relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed ii) 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. iii) The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC."

Senior Advocate Gaurav Agrawal, Amicus Curiae and Senior Advocate S. Wasim A. Qadri appeared for the Petitioner while the Respondent-wife appeared in person.

The prime contention of the Appellant-husband was that the provisions of Section 125 of CrPC 1973 do not prevail in light of the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (‘1986 Act’). Furthermore, it was contended that even if a “divorced Muslim woman” seeks to move the court under the secular provision of Section 125 of CrPC 1973, it would not be maintainable, rather the correct procedure would be to file an application under Section 5 of the 1986 Act.

With respect to the right to maintenance in a constitutional context, Justice Nagarathna has said that the direction to provide maintenance seeks to alleviate the financial stress and vulnerability of the impecunious woman who is dependent on her husband economically. It is indeed 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 under Section 125 of the CrPC, she added.

While interpreting the 1986 Act, the Court has said, “A plain reading of the aforesaid expression would also indicate that the right created in favour of a Muslim divorced woman is in addition to and not in derogation of any other law for the time being in force. This would mean that Section 125 of the CrPC applies to such a Muslim woman also and the definition of wife in Section 125 of the CrPC including a divorced wife (irrespective of the faith she follows) would not detract from such a divorced Muslim wife also claiming maintenance under that provision. This is despite Section 3 creating new rights insofar as such a divorced Muslim woman is concerned.”

Moreover, she added that the intent of the Parliament which can be gathered from the use of such a non-obstante clause is to enhance the rights of a divorced Muslim woman in addition to what she would have been entitled to under Section 125 of the CrPC. If the intent of the Parliament was otherwise, i.e., to curtail the rights of a divorced Muslim woman then the non-obstante clause would not have found a place in sub-section (1) of Section 3 of the 1986 Act, she said.

She also considered Section 5 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (“2019 Act”) and 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. The intent of the 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. Therefore, prior to a divorce in accordance with law, a married woman has access to maintenance under the general law, i.e., Section 125 of the CrPC and under a special law, i.e., 2019 Act. When divorce is void and illegal, such a Muslim woman can also seek remedy under Section 125 of the CrPC.”

She also posed a very important question i.e. “What is the position of a wife after her marriage in Indian Society?”. In this regard, she mentioned the vulnerability of married women in India who do not have an independent source of income or who do not have access to monetary resources in their households, particularly for their personal expenses.

“It is well-known that such an Indian homemaker tries to save as much money as possible from the monthly household budget, not only to augment the financial resources of the family but possibly to also save a small portion for her personal expenses. Such a practice is followed in order to avoid making a request to the husband or his family for her personal expenses. Most married men in India do not realise this aspect of the predicament such Indian homemakers face as any request made for expenses may be bluntly turned down by the husband and/or his family. Some husbands are not conscious of the fact that the wife who has no independent source of finance is dependent on them not only emotionally but also financially.”, she remarked.

She concluded that 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. Further, she said that those Indian married men who are conscious of this aspect and who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged.

Justice Augustine George Masih has observed that Section 125 of the CrPC is a measure for social justice to protect the weaker sections, irrespective of applicable personal laws of the parties, as contemplated through Articles 15(3) and 38 of the Constitution. Further, he said that the purpose of Section 125 of CrPC has been spelt out to prevent vagrancy and destitution of the person claiming rights through invoking the procedure established under the said provision.

He observed, “This Court has clarified the intent of the Parliament by giving beneficial construction to the expressions contemplated under Section 3 of the 1986 Act, particularly, “within iddat period” by observing that the Parliament never sought to restrict the rights of a divorced Muslim woman to iddat period. 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. Adding to this well-expounded interpretation of the provisions of the 1986 Act, it is hereby pertinent to highlight that 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.”

Justice Masih concluded 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.

The court perused and referred to the landmark judgments in Danial Latifi and Another v. Union of India (2001 SC), Mohd. Ahmed Khan v. Shah Bano Begum and others (1985 SC), Fuzlunbi v. K. Khader Vali and Anr. (1980 SC), Iqbal Bano v. State of Uttar Pradesh and Another (2007 SC), Shabana Bano v. Imran Khan (2010 SC),Khatoon Nisa v. State of Uttar Pradesh and Others (2014 SC), Shamim Bano v. Asraf Khan (2014 SC) and ors.

Accordingly, the Court dismissed the criminal appeal and concluded that relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed; 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 and that the provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC.

Cause Title: Mohd. Abdul Samad v. State of Telangana and Anr. (Neutral Citation: 2024 INSC 506)

Appearances:

Petitioner: Senior Advocate Gaurav Agrawal, Amicus Curiae, Senior Advocate S. Wasim A. Qadri for the Petitioner

Respondents: In person

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