Maintenance u/s 125 CrPC is applicable to Muslim women
The Supreme Court (SC) says in a judgement in Mohd. Abdul Samad v State of Telangana & Another on 10th July 2024 that the Muslim women are eligible for maintenance under Section 125 of the Code of Criminal Procedure (CrPC) and the religion neutral provision is applicable to all married women irrespective of their religion.
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. The Article states that the state shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth.
Conclusions in the concurring judgement
There are two separate judgements by the two-member bench in this case. But the judges issued a concurring judgment in which they state the following conclusions:
a) Section 125 of the CrPC applies to all married women including Muslim married women.
b) Section 125 of the CrPC applies to all non-Muslim divorced women.
c) Insofar as divorced Muslim women are concerned, –
- Section 125 of the CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act in addition to remedies available under the Special Marriage Act.
- 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.
d) 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.
e) In case of an illegal divorce as per the provisions of the 2019 Act then,
- 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.
- The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC.
The 1986 Act will not prevail over secular Section 125 CrPC
The SC states in unequivocal terms that the Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act) will not prevail over the secular law, while asserting that maintenance is not mere charity but the right of all married women.
The SC, in its 2024 judgement as above, says that Section 3 of the 1986 Act does not bar alternative remedies for Muslim women under other laws such as Section 125 of the CrPC.
The Muslim Women (Protection of Rights on Marriage) Act 2019
A Muslim woman who is divorced by her husband by pronouncing talaq can seek maintenance allowance under the Muslim Women (Protection of Rights on Marriage) Act 2019. This is the case in which the SC invalidated the practice of instant triple talaq.
The Act declares any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, to be void and illegal and the act entitles a divorced Muslim woman to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.
However, a divorced Muslim woman can choose to not be governed by the act and opt for other remedies available under any other law or custom.
Historical events regarding maintenance u/s 125 CrPC
The Section 125 of the CrPC is a provision that provides maintenance to wives, children, and parents who are unable to maintain themselves and it applies to all religions.
The Section was made applicable to Muslim women after the SC ordered maintenance in the case Mohd. Ahmed Khan v Shah Bano Begum in 1985 (Shah Bano case) , where the SC held that a divorced Muslim woman was entitled to maintenance from her former husband under Section 125 of the CrPC. The Shah Bano case is a legal milestone in the battle for protection of rights of Muslim women.
The then government, elected in 1984, passed the Muslim Women (Protection on Divorce Act), 1986 which overturned the verdict in the Shah Bano case and said the period of maintenance can only be for the iddat period. The act said that if a woman wasn’t able to provide for herself, the Magistrate had the power to direct the Wakf Board for providing the aggrieved woman means of sustenance and for her dependent children.
