SC JUDGMENT ON THE MUSLIM WOMEN’S RIGHT TO MAINTENANCE
The recent Supreme Court judgment, Mohd Abdul Samad vs The State of Telangana, has upheld the divorced Muslim women’s rights to claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC), 1973.
The case:
A Muslim man challenged a direction to pay interim maintenance to his divorced wife under Section 125 of the Criminal Procedure Code (CrPC).
The petitioner argued that the Muslim Women (Protection of Rights on Divorce) Act, 1986, should supersede Section 125 CrPC.
He contended that the 1986 Act is a special law with more comprehensive maintenance provisions, thus taking precedence over the general provisions of Section 125 CrPC.
Referenced Sections 3 and 4 of the 1986 Act, which contain a non-obstante clause, to argue that these sections empower First Class Magistrates to handle matters related to Maher (mandatory gift that the husband gives to his wife at the wedding) and subsistence allowances.
He insisted that family courts lack jurisdiction in these matters, which should be handled by Magistrates as per the 1986 Act.
The petitioner highlighted the wife’s failure to submit an affidavit opting for the CrPC provisions over the 1986 Act, as required by Section 5 of the 1986 Act.
Muslim Women (Protection of Rights on Divorce) Act, 1986
The Act was enacted to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands.
It addresses matters related to the protection of these rights.
The Act was a response to the Supreme Court's decision in Mohd. Ahmad Khan vs. Shah Bano Begum (1985), which held that Section 125 of the CrPC, a secular provision, is applicable to all, regardless of religion.
The Court's decision established that personal laws do not negate the right to maintenance under Section 125 CrPC.
Provisions:
A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance from her former husband, to be paid within the iddat period (typically three months).
The Act also addresses the payment of mahr (dower) and the return of properties given to the woman at the time of marriage.
The Act also provides for the maintenance of children born out of the marriage until they reach the age of two years.
Choice of Jurisdiction:
The Act allows for a divorced woman and her former husband to choose to be governed by the provisions of Sections 125 to 128 of the CrPC, 1973, provided they make a joint or separate declaration at the first hearing of the application.
Evolution:
Danial Latifi & Another vs. Union of India (2001):
A Constitution Bench of the Supreme Court upheld the constitutional validity of the 1986 Act, affirming that its provisions do not violate Articles 14, 15, and 21 of the Indian Constitution.
It extended the right of maintenance to Muslim women beyond the iddat period until remarriage.
Shabana Bano v. Imran Khan (2009):
The Supreme Court reiterated that divorced Muslim women could claim maintenance under Section 125 CrPC even beyond the iddat period, as long as they do not remarry.
This affirmed that Section 125 CrPC applies irrespective of religion.
Continuation of Section 144: The judgment noted that the Bharatiya Nagarik Suraksha Sanhita, 2023, which has replaced the CrPC, retains the older provision on alimony under Section 144.
Section 125 of the Criminal Procedure Code (CrPC)
Section 125 provides for the maintenance of wives, children, and parents who are unable to maintain themselves.
Key Provisions:
Eligible Persons:
Wife: Includes a divorced wife who has not remarried.
Children: Includes both legitimate and illegitimate minor children, and adult children who cannot maintain themselves due to physical or mental abnormalities.
Parents: Both father and mother who are unable to maintain themselves.
Conditions:
The person liable to pay maintenance must have sufficient means.
The person liable has neglected or refused to maintain the eligible person.
Order: The Magistrate can issue an order for a monthly allowance for the maintenance of the eligible person.
Maximum Amount: There is no fixed maximum amount; the amount is determined by the Magistrate based on the specific circumstances of the case.
Significance:
Social Justice: Aims to prevent vagrancy and destitution by ensuring that dependents are financially supported.
Secular Applicability: Applies universally across all religions and is not confined to any specific religious group.
The ruling upholds Section 125 of the CrPC's guarantee that Muslim women have the same legal options as women of other faiths. It confirmed that rights under Section 125 are not excluded by laws such as the Muslim Women (Protection of Rights on Marriage) Act, 2019.
