Statutory right to seek maintenance under Sec. 125 of CrPC is embedded in Constitution irrespective of the faith a woman belongs to: Supreme Court upholds divorced Muslim women's Right to Maintenance under CrPC in addition to personal law
Justices BV Nagarathna & Augustine G Masih [10-07-2024]

Read Order: MOHD. ABDUL SAMAD v. THE STATE OF TELANGANA & ANR [CRL APL NO. 2842 OF 2024]

Ridhima Malhotra

New Delhi, July 10, 2024: In a landmark judgment, the Supreme Court has heldthat Section 125 of the Code of Criminal Procedure (CrPC), which provides for maintenance, applies to all married women, including divorced Muslim womenand those subjected to the now outlawed practice of instant triple talaq, thereby upholding the secular rights of women following the Islamic faith.

A bench comprising Justice BV Nagarathna and Justice Augustine George Masih held that a Muslim woman, either married or divorced under Muslim personal law, has the option to seek maintenance under Section 125 CrPC in addition to remedies available under The Muslim Women (Protection of Rights on Divorce) Act, 1986.

The bench observed in its judgement 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.

Justice Nagarathna observed that 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. This ought to be irrespective of the faith a woman belongs to, the Judge said.

“The remedy of maintenance is a critical source of succour for the destitute, the deserted and the deprived sections of women. There can be no manner of doubt that it is an instantiation of the constitutional philosophy of social justice that seeks to liberate the Indian wife including a divorced woman from the shackles of gender-based discrimination, disadvantage and deprivation,” observed Justice Nagarathna in the comprehensive judgement.

Holding that there cannot be a disparity amongst divorced Muslim women on the basis of the law under which they were married or divorced in the matter of their maintenance post-divorce, Justice Nagarathna further said that Section 125 of the CrPC is independent of and in addition to maintenance that could be awarded under the Protection of Women from Domestic Violence Act, 2005 which is applicable to an ‘aggrieved woman’ in a ‘shared household’ as defined under the provisions of the aforesaid Act.

Significantly, Justice Nagarathna observed that it is commonplace that married women sacrifice employment opportunities to nurture the family, pursue child rearing, and undertake care work for the elderly.

“A neglected dependent wife, which also includes a divorced woman who has no other source of income, has to perforce take recourse to borrowings from her parents/relatives/others during the interregnum to sustain herself and the minor children, till she receives interim maintenance. This makes her obligated in so many ways which may be taken advantage of by her parental (or natal) family or others from whom she may have borrowed,” Justice Nagarathna said, adding that

“It is in this delicate context that the law of maintenance strikes a careful, just and fair balance between the husband’s sacrosanct duty towards his wife and children and the social imperative of not imposing oppressive or punitive financial hardship on the husband.”

The apex court was deciding an appeal filed by a man challenging a Telangana High Court order that upheld the Family Court's decision granting maintenance of Rs. 20,000 per month to his divorced wife under Section 125 CrPC. The High Court had modified the Family Court's order and reduced the maintenance amount to Rs. 10,000 per month.

The Supreme Court rejected the husband's contention that after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman cannot seek maintenance under Section 125 CrPC and that her only recourse is to approach the court under the 1986 Act. The top court held that Section 125 CrPC applies to all women, irrespective of religion. It said the 1986 Act is not in derogation of Section 125 CrPC but in addition to it. A divorced Muslim woman has the option to seek maintenance under either or both laws.

The apex court further clarified that if a divorced Muslim woman has received any sum under the 1986 Act, it can be considered by the Magistrate while deciding the maintenance amount under Section 125 CrPC, as per Section 127(3)(b) CrPC. The court also held that Muslim women who have been subjected to the now outlawed practice of instant triple talaq can seek subsistence allowance under the Muslim Women (Protection of Rights on Marriage) Act, 2019 in addition to remedies under Section 125 CrPC.

“… we are inclined to conclude 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,”observed Justice Masih in the judgement.

Justice Masih also held that in a case where a husband has fulfilled his obligations under Section 3 of the 1986 Act or as provided by customary or 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, in such a factual matrix, 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. However, if the husband fails to sustain the said objection(s) raised during the proceedings initiated under Section 125 of CrPC 1973, and an order is accordingly passed, it would not be inherently barred or liable to be cancelled through an application under Section 127(3)(b) of CrPC 1973,” said Justice Masih, adding that nevertheless, other appropriate remedies as provided under the CrPC 1973 or any other law to that effect, shall always be open to be exercised by such a husband to seek setting aside or appropriate modification of an order so passed under Section 125 of CrPC 1973.

He further said that, undoubtedly, 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, as the case may be, under Section 125 of CrPC 1973, can be reduced to the extent of deemed double benefit being given to a divorced wife.

“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,”added JusticeNagarathna.

Having concurred with Justice Masih’s opinion, Justice Nagarathnasaid, “In my view, 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”.

The apex court, thus, rejected the contention of the counsel for the appellant that the 1986 Act being a special law, prevails over the provisions of CrPC 1973.

Delving into the broader perspective of maintenance and the institution of marriage, Justice Nagarathnaadverted to 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.

Justice Nagarathna observed that “a wife who is referred to as a homemaker is working throughout the day for the welfare of the family without expecting anything in return except possibly love and affection, a sense of comfort and respect from her husband and his family which are towards her emotional security. This may also be lacking in certain households”.

Noting that while the contributions of such a homemaker get judicial recognition upon her unfortunate death while computing compensation in cases under the Motor Vehicles Act, 1988,  she lamented that the services and sacrifices of homemakers for the economic well- being of the family, and the economy of the nation, remain uncompensated in large sections of our society.

“Therefore, I observe 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,” said Justice Nagarathna.

Such financial empowerment would place such a vulnerable wife in a more secure position in the family, she said, adding thatthose 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 Nagarathna also pointed out that another aspect of vulnerability of a married Indian woman is regarding her security of residence in her matrimonial home.

“Thus, both ‘financial security’ as well as ‘security of residence’ of Indian women have to be protected and enhanced. That would truly empower such Indian women who are referred to as ‘homemakers’ and who are the strength and backbone of an Indian family which is the fundamental unit of the Indian society which has to be maintained and strengthened,” said Justice Nagarathna in the comprehensive judgement.

She further said that it goes without saying that a stable family which is emotionally connected and secure gives stability to the society for, it is within the family that precious values of life are learnt and built.

“It is these moral and ethical values which are inherited by a succeeding generation which would go a long way in building a strong Indian society which is the need of the hour. It is needless to observe that a strong Indian family and society would ultimately lead to a stronger nation. But, for that to happen, women in the family have to be respected and empowered!” said Justice Nagarathna in her concluding remarks.

In the judgement, Justice Masih explained that a 5-Judge Bench in Mohd. Ahmed Khan v. Shah Bano Begum and others (1985) [LQ/SC/1985/147] extensively dealt with the issue of maintenance apropos the obligation of a Muslim husband to his divorced wife who is unable to maintain herself, either after having been given divorce or having had sought one. The Bench unanimously went on to hold that the obligation of such a 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, said Masih.

“After the pronouncement of the aforesaid verdict, a controversy is said to have emerged anent the true obligations of a Muslim husband to pay maintenance to his divorced wife, particularly beyond the iddat period. The Parliament, as an attempt to clarify the position, brought about the 1986 Act,” noted Justice Masih.

“Section 3 of the 1986 Act, which opens up with a non- obstante clause seeking to override the application of all other existing laws, was carefully perused by this Court in the common verdict rendered on the constitutional validity in the decision in Danial Latifi,” observed Justice Masih, adding that  “…the 1986 Act was read down to not foreclose the secular rights of a divorced Muslim woman.”

Justice Masih further wrote in the judgement that “The position that the rights under Section 125 of CrPC 1973 would also be accessible to a divorced Muslim woman was substantially reiterated in Shabana Bano v. Imran Khan (2010) [LQ/SC/2009/2101] , whereby this Court, through a cumulative reading of the decision in Danial Latifi (supra), reached the said conclusion.”