Divorced Muslim Woman Can Seek Maintenance From Husband Under S.125 CrPC In Addition To Remedy Under 1986 Act : Supreme Court

The Supreme Court today (July 10) held that a divorced Muslim woman is entitled to file a petition for maintenance against her ex-husband under Section 125 of the Code of Criminal Procedure. The Court held that this right of a Muslim woman is in addition to the right under the Muslim Women (Protection of Rights on Divorce) Act 1986.The Bench of Justices BV Nagarathna and Augustine George Masih dismissed a petition filed by a Muslim man's plea against the direction to pay interim maintenance to his divorced wife under Section 125 CrPC. Justices Nagarathna and Masih delivered separate but concurring judgments.Conclusions from the judgmentThe conclusions emerging from the concurring judgments of the judges are as follows :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, -i) 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.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. This is because 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. [This means that if any maintenance has been given to Muslim wife under the personal law, then it shall be taken into account by the Magistrate to alter the maintenance order under Section 127(3)(b)]e) 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.Remedy under Section 125 CrPC in addition to remedy under the Muslim Women (Protection of Rights on Divorce) Act 1986"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 stated in his judgment after referring to various precedents including the Daniel Latifi judgment."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," Justice Masih stated.Justice Nagarathna explained in her judgment that the rights given to Muslim women under the Muslim Women (Protection of Rights on Divorce) Act 1986 were in addition to Section 125 CrPC. After referring to the provisions of the 1986 Act and noting that there is no bar under the said Act against a Muslim woman filing a petition under Section 125 CrPC, Justice Nagarathna stated :"One cannot read Section 3 of the 1986 Act containing the non- obstante clause 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. Such an interpretation would be regressive, anti-divorced Muslim woman and contrary to Articles 14 and 15(1) and (3) as well as Article 39(e) of the Constitution of India. Therefore, inspite of an option of seeking maintenance under the provisions of the 1986 Act, Section 125 of the CrPC is applicable to a divorced Muslim woman."It was held that the 1986 Act is not a substitute for Section 125 of the CrPC and nor has it supplanted it and both can operate simultaneously at the option of a divorced Muslim woman as they operate in different fields."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 which states that the State shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth or any of them. Further, our interpretation is consistent with ...

Divorced Muslim Woman Can Seek Maintenance From Husband Under S.125 CrPC In Addition To Remedy Under 1986 Act : Supreme Court

LIVELAW NEWS NETWORK

Tags