Muslim women entitled to alimony under secular CrPC, rules SC

In a judgment of far-reaching implications, the Supreme Court on Wednesday ruled that a Muslim woman can seek maintenance from her husband under Section 125 of the CrPC and said the "religion neutral" provision is applicable to all married women irrespective of their religion.

A bench of justices BV Nagarathna and Augustine George Masih in a separate but concurring verdict said, "(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."

It said insofar as divorced Muslim women are concerned, Section 125 of the CrPC, which deals with maintenance of wife, children and parents, applies to all such Muslim women, married and divorced, 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 (the Muslim Women (Protection of Rights on Divorce) 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," the bench said.

It dismissed an appeal of Mohammed Abdul Samad, who has challenged an order of Telangana high court affirming the family court order to pay his estranged wife maintenance.  

The top court in its 99-page verdict said in case of an illegal divorce as per the provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2019, the woman can seek subsistence allowance from her husband.

"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," it said.

The bench clarified that 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 law.

"The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC," it ruled.

Justice Masih, who penned 43-page verdict on behalf of the bench said, "We are inclined to conclude 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".

He said, "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."

Justice Nagarathna, who gave separate reasoning for her concurring view said remarriage of a divorced Muslim woman does not nullify her claim to a just settlement under the 1986 Act.

"I, therefore, hold that Section 125 of the CrPC cannot be excluded from its application to a divorced Muslim woman irrespective of the law under which she is divorced. There cannot be disparity in receiving maintenance on the basis of the law under which a woman is married or divorced. The same cannot be a basis for discriminating a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the CrPC or any personal or other law such as the 1986 Act," she said.

Justice Nagarathna said, "This court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity."

She noted that although the provisions of the 1986 Act have been upheld by a Constitution bench of this court in the case of Danial Latifi (2001 verdict), the same would not in any way restrict the application of Section 125 of the CrPC to a divorced Muslim woman. 

Justice Nagarathna added the 1986 Act is not a substitute for Section 125 of the CrPC and nor has it supplanted it and both can operate simultaneously at the option of a divorced Muslim woman as they operate in different fields.

In her 45-page concurring verdict, Justice Nagarathna said, "I find that if section 125 of the CrPC is excluded from its application to a divorced Muslim woman, it would be in violation of Article 15(1) of the Constitution of India which states that the State shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth or any of hem. Further, our interpretation is consistent with the spirit of Article 15(3) of the Constitution."

The contentious issue of Muslim women getting maintenance under secular provision of section 125 of CrPC had taken centrestage of political discourse in 1985 when a Constitution bench in Mohammed Ahmed Khan versus Shah Bano Begum case in a unanimous decision had ruled that Muslim women were also entitled for maintenance.

The verdict resulted in a controversy with regard to the true obligations of a Muslim man to pay maintenance to his divorced wife, particularly beyond the iddat period (of three months).

The Rajiv Gandhi government, in an attempt to clarify the position, brought the 1986 Act wherein it was sought to specify the entitlements of such a woman at the time of divorce.