Untangling SC's Clarification on Muslim Women and Maintenance Under General Law

In the latest judgment, the Supreme Court further clarifies the settled position on the right of maintenance of Muslim women under both the 1986 Act and Section 125 of the CrPC.

(Photo: Deeksha Malhotra/The Quint)

Can Muslim women seek maintenance under the general law of the Code of Criminal Procedure, 1973 (CrPC) when a special law on the subject of maintenance, the Muslim Women (Protection of Rights on Divorce) Act, 1986 (henceforth, referred to as the “1986 Act”), exists? The Supreme Court pronounced a judgment on the issue this week.

The judgment has been delivered by a two-judge bench of Justices BV Nagarathna and Augustine George Masih. Both judges have written their separate but concurring opinions and a brief joint conclusion. This is not the first time this issue has come before the Supreme Court, and this is also not the first time it has decided on it.

In the present case, the wife had initiated criminal proceedings against the husband by filing an FIR. The husband had proceeded for talaq against the wife and divorce had accordingly taken place. It was claimed that some lumpsum amount was sent by the husband as maintenance during the iddat period to the wife, which she had refused.

Instead, the wife approached the Family Court for interim maintenance under Section 125 of the CrPC, a general law, and the court allowed the wife’s application for maintenance. This is where the issue arose.

The husband sought before the High Court the quashing of this order of the Family Court. The High Court did not quash the order but decreased the quantum of maintenance amount to half. Still feeling aggrieved from the High Court’s order, the husband sought relief from the Supreme Court.

Before the Supreme Court, the main contention raised by the husband, here the Appellant, was that the provisions of Section 125 of the CrPC do not prevail in light of the enactment of the 1986 Act.

In other words, if a “divorced Muslim woman” seeks maintenance from the court, her application under Section 125 application would not be maintainable and she can only seek maintenance under Section 5 of the 1986 Act where the exclusive recourse lies. It was argued that the 1986 Act is a special law on the subject of maintenance to Muslim women and thus would supersede the general law of maintenance—Section 125 CrPC.

It is important to note that Section 125, which aims to prevent vagrancy in society, not only has provisions for the maintenance of the wife but also for children and parents. A wife, married or divorced, can seek interim maintenance from her husband or former husband (if she has not remarried) under Section 125 CrPC on filing an application before a Family Court. This right under Section 125 is not absolute and is subject to the final determination of the rights of the parties by the appropriate courts. Moreover, the wife will have to prove that she is unable to maintain herself and that the husband has sufficient means to maintain her.

In as early as 1980, a three-judge bench of the Supreme Court, in the Fuzlunbi case, had observed that a provision that flows from the responsibility of the state towards social welfare should not single out one religion and be applicable to the “whole community of womanhood”.

In 1985, the issue of maintenance and the clash of personal laws and the general law of the CrPC again came before a five-judge bench of the Supreme Court in the Shah Bano Begum matter. The bench, in another unanimous judgment, held that the obligation of a Muslim husband does not get affected by the existence of any personal law in the subject of maintenance and Section 125 of the CrPC is an independent remedy available to a Muslim woman, akin to other Indian women, to seek maintenance from their husbands.

Thus, Muslim women can, in addition to their personal laws, seek maintenance under the CrPC.

The next year, the 1986 Act was passed by the Parliament, consisting of the framework under which a divorced Muslim woman can seek her rights such as a fair and reasonable provision for maintenance during the iddat period, Mahr, and properties from the husband from whom she has obtained divorce or if he has divorced her. It was from 1986 onwards that the friction between Section 125 of the CrPC and the 1986 Act started.

It was in 2001 that the issue came before a five-judge bench of the Supreme Court in the Danial Latifi case. The 1986 Act was challenged before the court. The court, while upholding the constitutional validity of the Act, read the provisions down to not foreclose the rights of a divorced Muslim woman to seek maintenance under Section 125 CrPC.

Thus, since 2001, the position on Muslim women’s right to seek maintenance under personal laws vis-à-vis general law (CrPC) has remained settled. From time to time, as happens in litigations, this settled position has been reiterated such as in the Shabana Bano case of 2010, the Khatoon Nisa case in 2014, Shamim Bano in 2014, and Shamima Farooqui in 2015.

In the latest judgment, the Supreme Court has reiterated the earlier position and has provided a concurring conclusion in a brief and perhaps more clearly worded order. The judgment further clarifies that the right of interim maintenance under Section 125 of the CrPC is a right in addition to the right of maintenance and Mahr under the 1986 Act, and a Muslim woman who has availed her rights under the 1986 Act can still use the CrPC to get maintenance, subject to her being “unable to maintain herself” and her former husband having sufficient means.

The husband will be within his rights to challenge this application of a former wife under Section 127(3)(b) of the CrPC on the basis of the maintenance already provided by him under personal law (the 1986 Act) and that the amount was sufficient for the wife to maintain herself.

In a nutshell, this interpretation of law reiterates the position of Indian law that creates an additional right for Muslim women to claim interim maintenance under the general law of the land in addition to the right of maintenance, Mehr, etc, under the 1986 Act.

Interestingly and importantly, the court also reiterated that both laws occupy different domains. While Section 125 of the CrPC places the inability of a woman to maintain herself as a prerequisite to the grant of interim maintenance, the 1986 Act provides for maintenance irrespective of a woman’s ability to maintain herself based on Islamic principles. Moreover, under the 1986 Act, the entitlements of a divorced Muslim woman are wider than the ambit of interim maintenance under Section 125 of the CrPC. This ambit also includes the special Islamic right of Mahr of Muslim women.

Moreover, there is a statutory time period of one month provided under the 1986 Act to decide the husband’s liability. Moreover, while non-compliance with an order under Section 125 of the CrPC attracts one month's imprisonment, an equivalent non-compliance with the 1986 Act can attract imprisonment of up to one year. However, the right which is unique to Section 125 of the CrPC is the right of married Muslim women to seek interim maintenance, since the 1986 Act only caters to divorced Muslim women.

Muslim women, for decades, have been claiming their maintenance rights both as Muslim women under the 1986 Act and Indian women under the CrPC. Since the 2001 Danial Latifi judgment, the position has remained fairly clear, even as timely clarifications kept coming from the courts like in all other areas of law.

There is no doubt that the interpretation of courts of Section 125 of the CrPC vis-à-vis the 1986 Act, to a great extent, dilutes the Islamic position on post-divorce maintenance since Section 125 itself has a contour of sacramental marriages, unlike the Islamic contractual marriages, where all ties are broken after the iddat period.

(The author practices law in the Supreme Court of India and the Delhi High Court. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)