Muslim Women Illegally Divorced Through Triple Talaq Can Seek Maintenance Under Section 125 CrPC : Supreme Court

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10 July 2024 1:53 PM GMT

  • Muslim Women Illegally Divorced Through Triple Talaq Can Seek Maintenance Under Section 125 CrPC : Supreme Court

    The Supreme Court has held that a Muslim woman, who has been illegally divorced by the pronouncement of triple talaq, is entitled to seek maintenance from her husband as per Section 125 of the Code of Criminal Procedure.This right is in addition to the remedy provided under the Muslim Women (Protection of Rights on Marriage) Act 2019, which specifies that a woman, who has been subjected to...

    The Supreme Court has held that a Muslim woman, who has been illegally divorced by the pronouncement of triple talaq, is entitled to seek maintenance from her husband as per Section 125 of the Code of Criminal Procedure.

    This right is in addition to the remedy provided under the Muslim Women (Protection of Rights on Marriage) Act 2019, which specifies that a woman, who has been subjected to triple talaq, will be entitled to claim subsistence allowance from her husband.

    It may be noted the 2019 Act criminalised the practice of triple talaq which was declared as void by the Supreme Court in 2017.

    The bench comprising Justices BV Nagarathna and Augustine George Masih was deciding the question whether a Muslim woman could take recourse to Section 125 CrPC to seek maintenance. While answering the question in the affirmative, the judgment authored by Justice Nagarathna discussed the rights of women who have been illegally divorced.

    "When divorce is void and illegal, such a Muslim woman can also seek remedy under Section 125 of the CrPC," Justice Nagaratna stated.

    The judgment specified that 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.

    The Court also held that Muslim women, who got married under the Special Marriage Act 1954, are also entitled to invoke Section 125 CrPC.

    "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."

    Conclusions from the Judgment

    The 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.

    Case Title: Mohd Abdul Samad v. The State of Telangana & Anr., Special Leave to Appeal (Crl) 1614/2024

    Citation : 2024 LiveLaw (SC) 452

    Click here to read the judgment

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