Case Comment: Mohd Abdul Samad v. The State of Telangana & Anr

By Anish Sinha 9 Minutes Read

“A divorced Muslim Woman can Seek Maintenance from Husband under S.125 CrPC in addition to remedy under 1986 Act.”

Citation: Special Leave to Appeal (Crl) 1614/2024

Judicial forum: Supreme Court of India

Date of Judgement: 10 July 2024

Bench: Justices BV Nagarathna and J. Augustine George Masih  

Sections Referred: Section 125 of the CrPC 

Introduction

In the landmark 2001 ruling in Danial Latifi & Anr v. Union of India¹  The apex court held that if the husband fails to make reasonable and fair provisions for maintenance within the iddat period, the wife can claim maintenance under Section 125 of the Criminal Procedure Code, 1973. This is not the rare but the same decision was taken in shah Bano case² where Justice D.Y Chandrachud ruled that Section 125 of the Code of Criminal Procedure applied to all citizens, irrespective of their religion, without discrimination. And in the same case the court also notified that Section 125(3) of the Code of Criminal Procedure was applicable to Muslims as well and in case of any conflict between Section 125 and Muslim Personal Law, Section 125 prevails. But still the answer was ambiguous as it was nullified by the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the validity of the law was upheld in 2001.

 Today again in the Mohd Abdul Samad case it was held that a woman can file a claim for maintenance under Section 125 of CrPC against her former husband.

Facts

In the said case, Petitioner Mohd Adbul Samad challenged a 2017 family court order directing him to pay maintenance of Rs. 20,000 per month to his former wife, on the grounds that the couple had gotten divorced as per Muslim personal law in 2017.  In response to which Telangana High Court, on appeal, refused to set aside the order of the family court and directed to pay Rs. 10,000 interim maintenance to his former wife. Finally, the petitioner approached the Supreme Court for relief. 

Judgment

Supreme Court bench comprising Justices BV Nagarathna and J. Augustine George Masih dismissed an appeal by a Muslim man against a Telangana High Court order allowing his Ex-wife to seek maintenance under section 125 of CrPC and held that a Muslim woman is entitled to seek maintenance from her husband under Section 125 of the CrPC as a secular legislation, even if they were divorced under religious personal law. In viewpoint Justice Nagarathna, opinionated that Section 125 CrPC is “embedded in the text, structure and philosophy of the Constitution” as a social justice measure. “The remedy of maintenance is a critical source of success for the destitute, the deserted and the deprived sections of women… 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,”

Justice BV Nagarathna also noted in the judgment that Muslim women, who are divorced through the illegal method of triple talaq, (declared as void by the Supreme Court and criminalized by the Muslim Women (Protection of Rights on Marriage) Act 2019 are also entitled to claim maintenance under Section 125 CrPC.

The court further opinionated that this so maintenance 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. 

Apart from these, other major key points of the case are:

1. Section 125 of the CrPC applies to all married women including Muslim married women.
2. Section 125 of the CrPC applies to all non-Muslim divorced women.
3. Insofar as divorced Muslim women are concerned –

1. 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.
2. 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.
3. 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)]

4. 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.
5. In case of an illegal divorce as per the provisions of the 2019 Act then,

1. 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.
2. 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.
3. The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC.

Conclusion

This is not the first time when the court is ruling in such issues as in Arshiya Rizvi v. State of U.P. Case, 2022, Razia v. State of U.P. Case, 2022, and Shakila Khatun v. State of U.P, Case, 2023, the Allahabad High Court has reaffirmed a divorced Muslim woman’s right to claim maintenance under Section 125 of the CrPC even after the completion of the iddat period as long as she does not marry. Further In Mujeeb Rahiman v. Thasleena Case, 2022, a single judge of the Kerala High Court observed that a divorced Muslim woman can seek maintenance under Section 125 of the CrPC until she obtains relief under Section 3 of the 1986 Act.

So again, this cannot be considered the last step, as it might take many turns in the future.

1. AIR 2001 SC 3958 ↩︎
2. AIR 1985SC 945 ↩︎

Anish Sinha