On July 10 in a very important judgment, the Supreme Court held that a Muslim woman divorced by her husband is entitled to seek maintenance as per Section 125 of the Code of Criminal Procedure (CrPC).
A bench of Justices BV Nagarathna and Justice Augustine George Masih pronounced separate but concurring judgments in a case where a Muslim man had challenged a Telangana High Court order to pay Rs 10,000 as interim maintenance to his former wife. He had argued that the maintenance claim in his case should be governed by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Muslim Women (Protection of Rights on Divorce) Act, 1986
It is important to note that the 1986 Act is a religion-specific law that provides for a procedure for a Muslim woman to claim maintenance during a divorce. It was enacted to overturn the Supreme Court’s 1985 judgment in the Shah Bano case.
Mohammed Ahmed Khan v. Shah Bano Begum
The current case is a reminder of the famous Shah Bano case decided in 1985. It is important to first look at the facts of the Shah Bano case to understand how different or similar the current judgment is from that of the Shah Bano case.
In 1978 a Muslim lawyer named Mohammed Ahmed Khan divorced his wife Shah Bano. As required by the Muslim personal law. Ahmed paid Rs 3000 to Bano during the iddat period (three months’ duration, following the divorce).
Bano filed a petition under section 125 of CrPC before the Judicial Magistrate court in Indore. Bano claimed that her husband was an affluent man with an annual income of more than Rs 60,000. The Magistrate Court ordered Ahmed to pay Bano Rs 25 every month as maintenance. Bano filed an appeal in the High Court against this order and the High Court in 1979 revised the maintenance amount to Rs 179.20 per month. Following this Ahmed challenged the High Court order in the apex court.
Ahmed contended that as marriage and divorce in his community are governed by Muslim personal law, which requires the husband to only provide maintenance for the iddat period after divorce, he is not legally bound to give any maintenance to Bano.
Section 125 of CrPc and Muslim Personal Law
There was a clear conflict between the personal law and the CrPC which is common to all citizens.
However, the apex court while giving CrPC, a precedence over personal law held that, “Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the. application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act. It would make no difference as to what is the religion professed by the neglected wife, child or parent.”
According to Zia Mody in her book, '10 Judgments That Changed India', “Its interpretation was that the underlying purpose of Section 125 was to protect dependents from vagrancy and destitution—thus it saw no reason to exclude Muslims from its sweeping ambit”.
Current Cases Reiterate Shah Bano's Position
In the current case also the apex court while reiterating its earlier position said, “This ought to be irrespective of the faith a woman belongs to. 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”.
The Court made it clear that irrespective of the fact that a Muslim woman is married under the Special Marriage Act 1954, she is entitled to seek relief under Section 125 CrPC.
The court held 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.
The apex court judgment held, “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.”
The Gist of the Judgment is
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, -
-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
-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. The 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.
-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 the 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC.
d) The 1986 Act could be resorted to by a divorced Muslim woman, as defined under the said Act, by filing an application thereunder which could be disposed of in accordance with the said enactment.
e) In case of an illegal divorce as per the provisions of the 2019 Act then,
* 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.
* 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.
* The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC.
Muslim Women (Protection of Rights on Marriage) Act 2019
It is important to note that The Muslim Women (Protection of Rights on Marriage) Bill, 2019 enacted in 2019 makes all declarations of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
Section 5 of same Act states that, “Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.”
In other words, married Muslim women can seek subsistence allowance if talaq, as defined in the 2019 Act, is pronounced on her.
In the current judgment the apex court reiterated the conclusion of the Shah Bano case. The judgment reads, “The bench (in Shah Bano case) 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.”
In the nutshell, in the current case, the Supreme Court reiterated Shah Bano's judgment that right to maintenance is available to all women irrespective of religion.
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