SC rules divorced Muslim women can claim maintenance under Section 125 of CPC

New Delhi: The Supreme Court ruled on Wednesday that Muslim women under Section 125 of the 1973 Code of Criminal Procedure (CrPC) are entitled to maintenance payments from their divorced spouses. The statement was made by a bench consisting of Justices B V Nagarathna and Augustine George Masih in two separate yet concurring rulings.

Justice Nagarathna stated that Section 125 CrPC will apply to all women, not just married women.

The Supreme Court was hearing Mohd. Abdul Samad's plea after a family court in Telangana ordered him to pay Rs 20,000 in maintenance to his ex-wife. The woman had petitioned the family court under Section 125 of the CrPC, alleging that Samad had given her triple talaq. He filed an appeal with the Supreme Court, which disposed of it on December 13, 2023, and said, “that several questions are raised which need to be adjudicated” but “directed the petitioner to pay 10,000/- as interim maintenance”.

Samad challenged this, telling the Supreme Court that the higher court had overlooked the fact that Section 125 CrPC, a general Act, would be superseded by the provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986, a Special Act. The Rajiv Gandhi administration passed the 1986 law in an effort to overturn the Supreme Court's decision in the Shah Bano case.

Samad contended that “the provisions of Section 3 and 4” of the 1986 Act “which starts with non-obstante clause, will prevail over the provisions of section 125 Cr.P.C, which has no non-obstante clause and as such the application for grant of maintenance by Muslim divorced women under section 125 Cr.P.C, would not be maintainable before family court when the Special Act gives jurisdiction to First st class Magistrate to decide the issue of Maher and payment of other subsistence allowance under Section 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986”.

Section 125 of the CrPC says that “(1) If any person having sufficient means neglects or refuses to maintain — (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct.”

In September 2001, the Supreme Court's Constitution bench ruled in Danial Latifi & Another vs Union of India, upholding the 1986 Act's constitutional validity and declaring that none of its provisions offend Articles 14, 15, or 21 of the Indian Constitution.