The Supreme Court on Wednesday held that divorced Muslim women are entitled to maintenance under the “secular” Section 125 of the Code of Criminal Procedure.
The court agreed with amicus curiae, senior advocate Gaurav Agrawal, that a remedy under the secular statutory provision of Section 125 of the Cr.PC cannot be foreclosed for divorced Muslim women by virtue of enactment of a personal law remedy under the Muslim Women (Protection of Rights on Divorce) Act, 1986. A divorced Muslim woman is entitled to all rights of maintenance available to other equally situated women in the country.
A separate but concurring judgment by a two-judge Bench of Justices B.V. Nagarathna and Augustine Goerge Masih came on an appeal filed by a Muslim man challenging a Telangana High Court decision upholding though modifying a Family Court order allowing his wife, whom he had divorced via triple talaq, interim maintenance under Section 125 of CrPC.
Mohd. Abdul Samad, in his appeal, said his wife had to exclusively take recourse under the 1986 Act rather than Section 125 CrPC. He had argued that the 1986 Act was a special law and overrode the CrPC provision. He contended that a divorced Muslim woman’s application for maintenance under Section 125 was not maintainable.
Besides, the court pointed out that Section 3 of the 1986 Act requires a man to provide for a “reasonable and fair provision of maintenance” to his divorced Muslim wife only during the iddat period. Once the iddat period expires, the personal law obligation to maintain the divorced Muslim woman ceases.
On the other hand, Section 125 mandates a husband to provide monthly maintenance to his divorced wife, irrespective of her faith. “Any divorced wife who has not remarried is entitled to maintenance by her ex-husband who has sufficient means but has neglected or refused to maintain her,” Justice Nagarathna pointed out.
Further, the 1986 Act holds a Muslim man liable to pay his divorced wife maintenance for their children for only a period of two years from birth. Whereas Section 125 requires a husband to pay for their children till they attain the age of majority.
Justice Masih, in his opinion, said Section 125 manifested the constitutional commitment towards special measures to ensure a life of dignity for women at all stages of their lives, irrespective of their faith.
He observed that Section 125 and the 1986 Act were not at loggerheads with each other. The 1986 Act did not extinguish the right of a divorced Muslim woman to seek maintenance under Section 125. The choice is left to the Muslim woman to apply for maintenance either under Section 125 or the 1986 Act. If a Muslim woman is unable to maintain herself, she could apply for maintenance under Section 125. If, on the other hand, she is able to take care of herself financially, she could very well seek maintenance under the 1986 Act till the expiry of the iddat period. Courts have to give both laws a harmonious and purposive interpretation, Justice Masih observed.