Comprehensive breakdown of the Supreme Court Verdict on Divorced Muslim women’s right to seek maintenance under Section 125 CrPC

Deeksha

6 months ago

Supreme Court: In Special Leave to Appeal (Criminal) against a decision of the Telangana High Court, wherein, a plea by a Muslim man (husband) against Family Court’s direction to pay an interim maintenance of Rs. 20,000 per month to his divorced wife, was modified, and High Court directed him to pay an interim maintenance of Rs. 10,000 per month, the Division Bench of BV Nagarathna and Augustine George Masih, JJ. in separate but concurring judgments, while considering the question whether a Muslim woman is entitled to maintain a petition under Section 125 of the Code of Criminal Procedure, 1973 held that divorced Muslim woman can file a claim for maintenance under Section 125 of the CrPC against her husband.

Factual Matrix

As the marital relationship between the husband and wife deteriorated, the wife left the matrimonial home and initiated criminal proceedings against the husband by lodging FIR for offences punishable under Sections 498-A and 406 of the Penal Code, 1860 (‘IPC’). The husband pronounced a triple talaq on 25-09-2017 and moved Criminal Appeal for divorce before the office of Quzath seeking a declaration of divorce, which was eventually granted ex parte, and the divorce certificate was issued. 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 husband moved before the High Court, seeking quashing of the said Order of the Family Court. The High Court modified the Family Court’s order forming the impugned decision. Hence, the present appeal.

Husband’s Contentions

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 maintain a petition under Section 125 of the CrPC and must proceed under the provisions of the 1986 Act. It was submitted that 1986 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 1986 Act being a special law, prevails over the provisions of CrPC.

Distinct Views of the High Courts

The first view held that the remedy is to be exclusively exercised under Section 3 of the 1986 Act, impliedly holding that the rights under the secular provisions, Section 125 CrPC 1973 stood extinguished. Another view allowed a divorced Muslim woman to seek the remedy of maintenance under Section 125 of CrPC 1973 while explicit existence of Section 3 of the 1986 Act was recognised.

JUSTICE AUGUSTINE GEORGE MASIH’S ANALYSIS

Provisions of the 1986 Act vis-à-vis CrPC 1973

Justice Masih said that the legislature through Section 488 of the Code of Criminal Procedure, 1898, and subsequently by introducing Section 125 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 referred to Fuzlunbi v. K. Khader Vali and Another (1980) 4 SCC 125, wherein, it was observed that 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.

The 1986 Act was brought by the legislature as an attempt to clarify the position. In Mohd. Ahmed Khan v. Shah Bano Begum and others (1985) 2 SCC 556, wherein it was unanimously held that the obligation of husband would not be affected by the existence of any personal law in the said regard and the independent remedy for seeking maintenance under Section 125 of CrPC 1973 is always available. It also went on to observe that, even assuming, there is any conflict between the secular and personal law provisions in regard to maintenance being sought by a divorced wife, the Explanation to second Proviso to Section 125(3) of CrPC 1973 unmistakably shows the overriding nature of the former (secular law).

Justice Masih said that the 1986 Act sought to specify the entitlements of a divorced woman at the time of divorce. 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”. After the coming into effect of the 1986 Act, Section 3 and 4 were primarily under attack. In Danial Latifi v. Union of India, (2001) 7 SCC 740 Section 125 of CrPC 1973 was termed as a secular protection available to women across communities, and it was observed that provisions of the 1986 Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat does not appear to be reasonable and fair substitute of the provisions of Section 125 of CrPC. The position that the rights under Section 125 of CrPC 1973 would also be accessible to a divorced Muslim woman was reiterated in other authorities.

Further, Justice Masih referred to Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705, wherein, after the enactment of the Family Courts Act, 1984 (‘FCA 1984’), a divorced Muslim woman moved a Family Court under Section 125 of CrPC 1973. The Court laid down that the Family Court concerned had rightly held that Section 125 of CrPC 1973 would be applicable in the matter. 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.

In Kunhimohammed v. Ayishakutty 2010 SCC OnLine Ker 567, Justice Masih noted that a beneficial interpretation was adopted that the non-obstante clause in the 1986 Act, in no manner bars the remedy under Section 125 CrPC 1973. It was laid down that the domains occupied by the two provisions of 1986 Act and Section 125 are entirely different as the secular provision 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.

Whether grant of maintenance under Section 3 of the 1986 Act, accepted by wife without demur, would bar her to file an application under Section 125 of CrPC 1973 ?

Justice Masih said that the provision of Section 127(3)(b) acts as a proviso to the right under Section 125 only in such a circumstance where sufficient means of livelihood after the divorce, and the provisions contemplating the future needs of divorced Muslim women, are provided to the satisfaction of the Court concerned. Placing reliance upon Danial Latifi (supra), he said that a divorced Muslim woman is not restricted from exercising her independent right of maintenance under the secular provision of Section 125, provided she is able to prove the requisites encompassed by the said statute. He clarified that paying a specious amount to a divorced woman by virtue of requirements laid down in either the personal law or the customary law of the parties cannot be utilised to evade the liability under Section 125 of CrPC 1973 or to seek an equivalent reduction in the amount of maintenance to be provided therein. There must be a reasonable substitute for the maintenance under personal or customary law equating to a rational nexus between the actual sum of maintenance paid and the potential of maintenance under the equivalent provision of secular law.

Further, he explained that where a husband has fulfilled his obligations under Section 3 of the 1986 Act or under personal law so followed, and the divorced Muslim woman subsequently prefers to invoke Section 125 of CrPC 1973 on the ground of inability to maintain herself, undeniably, the right to move under this provision is open in favour of a divorced Muslim woman. When a husband opposes resort to Section 125 CrPC 1973, he has to establish that, (a) initial obligations under the customary and/or personal statutory enactments as detailed earlier stands fulfilled by him, and (b) that the wife, in the light of this, is able to maintain herself. He held that if a “reasonable substitute” has been provided for by the husband as per their personal or customary laws at the time of their divorce, the maintenance provided for by a Magistrate or a Family Court, under Section 125 of CrPC 1973, can be reduced to the extent of deemed double benefit being given to a divorced wife.

Decision

Justice Masih held that the High Court was correct in modifying the Family Court’s Order and upholding the maintainability of the petition filed under Section 125 of CrPC 1973 by the wife. Conclusively, he 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.

JUSTICE BV NAGARATHNA’S ANALYSIS AND DECISION

Justice Nagarathna agreed with Justice Masih’s views and reasoning. Justice Nagarathna said 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) of the Constitution 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. Article 15(3), read with Article 39(e) manifests a constitutional commitment towards 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 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 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.

Therefore, she viewed that 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.

It was 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 under Section 125 of the CrPC and it is commonplace that married women sacrifice employment opportunities to nurture the family, pursue child rearing, and undertake care work for the elderly.

Adequacy and sufficiency of maintenance

Justice Nagarathna relied upon Kunhi Moyin v. Pathumma, ¹ wherein, while dismissing a Muslim husband’s constitutional challenge to Section 125 of the CrPC, the High Court held that the salutary provision was enacted to achieve the ends of social welfare and reform and while interpreting Section 127(3)(b) of the CrPC, said that Section 127(3)(b) does not refer to mahr or dower or the maintenance paid during the iddat period as these are not the sums ‘payable on divorce’ under the personal law. She also relied upon Bai Tahira v. Ali Hussain Fidaalli Chothia, (1979) 2 SCC 316, it was held that Section 127 did not totally exempt a husband from providing maintenance to a destitute ex-wife if the amount he paid to her under the personal law was not sufficient to support her. It was reiterated that an order under Section 127 ought to be a reasoned order and shall only allow an order for maintenance to be cancelled if a judge was satisfied that the divorced woman had received a sufficient amount of maintenance under any customary or personal law.

Interpretation of 1986 Act

Regarding the opening non-obstante clause in Section 3 of the 1986 Act, Justice Nagarathna said 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 to under Section 125 of the CrPC. Further, she added that Parliament did not simultaneously or at any time 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. She explained that Section 3 of the 1986 Act containing the non-obstante clause cannot be read 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. Therefore, 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. When a woman approached the Court, invoking Section 125, the Court would have to ultimately balance between the amount awarded under the 1986 Act and the one to be awarded under Section 125 of the CrPC. Hence, the 1986 Act is a social welfare legislation that seeks to provide an additional right and thereby, an additional remedy.

“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.”

Conclusion

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.
For divorced Muslim women – i) Section 125 of the CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act, 1954 in addition to remedies available under the Special Marriage Act. ii) 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, as the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision. iii) 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 Muslim Women (Protection of Rights on marriage) Act, 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.