Can Divorced Muslim Woman File For Maintenance Under Section 125 CrPC? Supreme Court To Consider

In a Muslim man's plea against direction to pay interim maintenance to his divorced wife, the Supreme Court is set to consider the question whether a Muslim woman is entitled to maintain a petition under Section 125 CrPC.

The Bench of Justices BV Nagarathna and Augustine George Masih recently heard a case emanating from a Family Court order which, in a Section 125 CrPC petition preferred by a Muslim woman, directed the petitioner (her husband) to pay interim maintenance @ Rs.20,000 per month. This order was challenged before the High Court of Telangana, on the basis that the parties got divorced as per personal laws in 2017 and there was a divorce certificate to that effect, but the same was not considered by the Family Court.

However, the High Court did not set aside the direction for interim maintenance. Keeping in view the several questions of facts and law involved, it reduced the quantum from Rs.20,000 to Rs.10,000 per month, to be paid from the date of petition. Fifty percent of the arrears were ordered to be paid by the petitioner by January 24, 2024 and the remaining by March 13, 2024. Further, the Family Court was asked to try disposing of the main case within 6 months.

Aggrieved, the petitioner approached the Supreme Court pleading that a divorced Muslim woman is not entitled to maintain a petition under Section 125 of CrPC and has to proceed under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 Act. He urges that the 1986 Act is more beneficial to Muslim women insofar as the relief is maintenance is concerned.

On facts, the petitioner claims that he had paid Rs.15,000 to his divorced wife as maintenance during the iddat period. He also challenges his divorced wife's action of approaching the Family Court under Section 125 CrPC on the ground that the two did not submit any affidavit preferring CrPC provisions over the 1986 Act, in accordance with Section 5 of the latter.

After hearing initial submissions, the Court has appointed Senior Advocate Gaurav Agarwal to assist and listed the matter for consideration on February 19, 2024.

Background

The history of the issue can be traced back to 1985, when the Supreme Court delivered the landmark ruling in Mohd Ahmed Khan v. Shah Bano Begum. A Constitution Bench of the Court, in a unanimous decision, had ruled at the time that Section 125 CrPC was a secular provision applicable to Muslim women also. However, the judgment was not well received by certain sections of the society and seen as an attack on religious, personal laws.

The furor resulted in attempts to nullify the judgment through enactment of the Muslim Women Act, 1986, which restricted Muslim women's right to maintenance to 90 days after divorce (iddat period).

The constitutional validity of this Act came to be challenged before the top Court in Danial Latifi & Anr v. Union Of India in 2001.The Court upheld the validity of the special law. However, it clarified that liability of a Muslim husband to maintain the divorced wife under the 1986 Act was not confined to iddat period.

A few years later, in Iqbal Bano v. State Of U.P. and Anr (2007), the Supreme Court held the view that no Muslim woman can maintain petition under Section 125 CrPC to be unsustainable. Two years thereafter, in Shabana Bano v. Imran Khan, another Bench of the Court held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the CrPC after expiry of iddat period, as long as she does not remarry.

Subsequently, in Shamima Farooqui v. Shahid Khan (2015), the Supreme Court restored a Family Court order which held a divorced Muslim woman entitled to maintain a Section 125 CrPC petition for maintenance.

In 2019,  Justice A Amanullah (as a Judge at the Patna High Court) set aside a Family Court order rejecting a Muslim woman's petition for maintenance. It was opined that the Muslim woman had the option to move for maintenance under the 1986 Act as well as CrPC. If she chose the Code, she could not be said to be debarred under law on account of being a divorced Muslim lady.

Recent judicial precedents

Allahabad High Court

In Shakila Khatun v. State of U.P. and Another (2023), a Single Judge observed that a divorced Muslim woman is entitled to claim maintenance under Section 125 CrPC even for the period after iddat and for her whole life unless she is disqualified for the reasons such as marriage with someone else. 

In Razia v. State of U.P. (2022), a Single Judge observed that a divorced Muslim woman shall be entitled to claim maintenance from her husband under Section 125 CrPC even after expiry of the iddat period as long as she does not remarry.

In Arshiya Rizvi and Anr. v. State of U.P. and Anr. (2022), a Single Judge held that a Muslim woman is entitled to claim maintenance from her husband under Section 125 CrPC to succor her needs.

Kerala High Court

In Noushad Flourish v. Akhila Noushad & Anr. (2023), a Single Judge held that a Muslim wife who effected her divorce by pronouncement of 'Khula' cannot claim maintenance from her husband under Section 125 CrPC after effecting Khula.

In Mujeeb Rahiman v. Thasleena & Anr. (2022), a Single Judge ruled that a divorced Muslim woman can seek maintenance under Section 125 CrPC until she obtains relief under Section 3 of the 1986 Act. It was added that an order passed under Section 125 shall continue to remain in force until the amount payable under Section 3 of the Act is paid.

Counsels for petitioner: Senior Advocate S Wasim A Qadri; Advocates Saeed Qadri, Saahil Gupta, Deepak Bhati and Shivendra Singh; AOR Udita Singh

Case Title: Mohd Abdul Samad v. The State of Telangana & Anr., Special Leave to Appeal (Crl) 1614/2024

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