Supreme Court of India
MOHD. ABDUL SAMADversusTHE STATE OF TELANGANA & ANR.
- Citation
- 2024 INSC 506
- Decided
- 10 July 2024
- Disposal
- Dismissed
- Bench
- B V NAGARATHNA
Holding
Section 125 of the CrPC applies to all married and divorced women irrespective of religion and is not displaced by the Muslim Women (Protection of Rights on Divorce) Act, 1986 or the Muslim Women (Protection of Rights on Marriage) Act, 2019; the statutes operate concurrently, with Section 127(3)(b) preventing double maintenance benefits.
Summary
The appellant, a Muslim husband, obtained a triple talaq and was ordered by the Family Court to pay interim maintenance of Rs.20,000 per month to his divorced wife, which the High Court reduced to Rs.10,000. He appealed, arguing that Section 125 of the Code of Criminal Procedure (CrPC) does not apply to Muslim women after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Muslim Women (Protection of Rights on Marriage) Act, 2019, and that the non‑obstante clauses in those statutes override the secular provision. The Supreme Court examined the constitutional mandate of social justice, the purpose of Section 125, and the interplay of the personal‑law statutes, holding that Section 125 applies to all married and divorced women irrespective of religion and operates in addition to, not in derogation of, the 1986 and 2019 Acts, with Section 127(3)(b) preventing double benefit. Consequently, the High Court’s order was affirmed and the appeal dismissed.
Issues considered
- Whether Section 125 CrPC applies to all married women, including Muslim women
- Whether Section 125 CrPC applies to all non‑Muslim divorced women
- Whether Section 125 CrPC applies to Muslim women married and divorced under the Special Marriage Act
- Whether both Section 125 CrPC and the Muslim Women (Protection of Rights on Divorce) Act, 1986 apply to Muslim women married and divorced under Muslim law
- Whether orders under the 1986 Act must be considered under Section 127(3)(b) CrPC
- Whether a Muslim woman can avail relief under Section 5 of the 2019 Act or also under Section 125 CrPC in case of an illegal divorce
- Whether a Muslim woman, during pendency of a Section 125 petition, can resort to the 2019 Act if she is ‘divorced’
- Whether the 2019 Act provides a remedy in addition to or in derogation of Section 125 CrPC
Legislation cited
- Code of Criminal Procedure, 1973s. 125, s. 127(3)(b)
- Constitution of Indias. Article 14, s. Article 15(1), s. Article 15(3), s. Article 39(e)
- Family Courts Act, 1984
- Muslim Women (Protection of Rights on Divorce) Act, 1986s. 3, s. 4, s. 5, s. 7
- Muslim Women (Protection of Rights on Marriage) Act, 2019s. 5
- Protection of Women from Domestic Violence Act, 2005
Subjects
Section 125 CrPCmaintenanceMuslim womennon‑obstante clauseMuslim Women (Protection of Rights on Divorce) Act, 1986Muslim Women (Protection of Rights on Marriage) Act, 2019Section 127(3)(b)social justicesecular provisionpersonal lawillegal divorcesubsistence allowance
Judgment
[2024] 7 S.C.R. 1236 : 2024 INSC 506
Mohd. Abdul Samad
v.
The State of Telangana & Anr.
(Criminal Appeal No. 2842 of 2024)
10 July 2024
[B.V. Nagarathna* and Augustine George Masih,* JJ.]
Issue for Consideration
(i) Whether section 125 CrPC applies to all married women including
Muslim married women; (ii) Whether section 125 CrPC applies to
all non-Muslim divorced women; (iii) Whether 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; (iv) If Muslim women are married
and divorced under Muslim law, whether Section 125 of the CrPC
as well as the provisions of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 are applicable; (v) If Section 125 of
the CrPC is also resorted to by a divorced Muslim woman, as per
the definition under the 1986 Act, whether any order passed under
the provisions of 1986 Act shall be taken into consideration under
Section 127(3)(b) of the CrPC; (vi) In case of an illegal divorce
as per the provisions of the Muslim Women (Protection of Rights
on Marriage) Act, 2019, whether 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; (vii) In case of an illegal divorce
as per the provisions of the 2019 Act, during the pendency of a
petition filed under section 125 of the CrPC, if a Muslim is ‘divorced’
whether she can take recourse under Section 125 of the CrPC
or file a petition under the 2019 Act; (viii) Whether the provisions
of the 2019 Act provide remedy in addition to or in derogation of
Section 125 of the CrPC.
Headnotes†
Code of Criminal Procedure, 1973 – s.125 – Whether section
125 CrPC applies to all married women including Muslim
married women:
* Author
[2024] 7 S.C.R. 1237
Mohd. Abdul Samad v. The State of Telangana & Anr.
Held: Yes – Section 125 of the CrPC applies to all married women
including Muslim married women. [Per Court]
Code of Criminal Procedure, 1973 – s.125 – Whether section
125 CrPC applies to all non-Muslim divorced women:
Held: Yes – Section 125 of the CrPC applies to all non-Muslim
divorced women. [Per Court]
Code of Criminal Procedure, 1973 – s.125 – Whether 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:
Held: Yes – Insofar as divorced Muslim women are concerned,
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. [Per Court]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – If Muslim women
are married and divorced under Muslim law, whether Section
125 of the CrPC as well as the provisions of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 are applicable:
Held: 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. [Per Court]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.127(3)(b) – If
Section 125 of the CrPC is also resorted to by a divorced Muslim
woman, as per the definition under the 1986 Act, whether any
order passed under the provisions of 1986 Act shall be taken
into consideration under Section 127(3)(b) of the CrPC:
Held: Yes – 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.
[Per Court]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – In case of an
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illegal divorce as per the provisions of the Muslim Women
(Protection of Rights on Marriage) Act, 2019, whether 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:
Held: Yes – In case of an illegal divorce as per the provisions of
the 2019 Act then, 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. [Per Court]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – In case of an
illegal divorce as per the provisions of the 2019 Act, during
the pendency of a petition filed under section 125 of the CrPC,
if a Muslim is ‘divorced’ whether she can take recourse under
Section 125 of the CrPC or file a petition under the 2019 Act:
Held: Yes – 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. [Per Court]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – Whether the
provisions of the 2019 Act provide remedy in addition to or
in derogation of Section 125 of the CrPC:
Held: The provisions of the 2019 Act provide remedy in addition
to and not in derogation of Section 125 of the CrPC. [Per Court]
Code of Criminal Procedure, 1973 – s.125 – A measure for
social justice:
Held: Numerous decisions of this Court went on to state that
Section 125 of CrPC 1973 is a measure for social justice to protect
the weaker sections, irrespective of applicable personal laws of
the parties, as contemplated through Articles 15(3) and 38 of the
Constitution of India – The purpose of Section 125 of CrPC 1973
has been spelt out to prevent vagrancy and destitution of the person
claiming rights through invoking the procedure established under
the said provision – However, in Inderjit Kaur v. Union of India and
Others, it was clarified qua the wife that such a right is not absolute
[2024] 7 S.C.R. 1239
Mohd. Abdul Samad v. The State of Telangana & Anr.
in nature and is always subject to final determination of the rights
of the parties by appropriate courts – Further emphasis has also
been placed on the expression “unable to maintain herself” and
that the burden of proof is on the wife to prove the existence of
said circumstances leading to such inability – This is, in addition,
to the requirement to establish that the husband has “sufficient
means” to maintain her, and is, however, neglecting or refusing to
do so. [Paras 12, 13] [Per Augustine George Masih, J.]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.3 – Comparative
dissection:
Held: Under Section 3 of the 1986 Act, the entitlements or rights
of a divorced Muslim woman, wider than the ambit of maintenance,
arise as against the obligations of her former husband emanating
from their divorce – Per contra, under Section 125 of CrPC 1973,
a woman seeking maintenance has to establish that she is unable
to maintain herself – The right to seek maintenance under Section
125 of CrPC 1973 is invokable even during the sustenance of
marriage and, thereby is not contingent upon divorce – Another
distinction is related to the time period – While a petition moved
under Section 3(2) of the 1986 Act is to be decided in regard to
a husband’s liability under Section 3(1) of the 1986 Act within
a period of one month, there is no such statutory time frame
prescribed under Section 125 of CrPC 1973 – However, there is
an obligation to determine the interim maintenance within a period
of 60 days while dealing with a petition under Section 125 of CrPC
1973 – Moreover, failure to comply with such order passed under
Section 3(2) of the 1986 Act may lead to issuance of a warrant
for levying the amount of maintenance as directed under the said
order and may also sentence him to imprisonment till the payment
is made or for a term which may extend to one year – On the
other hand, equivalent non-compliance of an order passed under
Section 125 of CrPC 1973 may result in imprisonment for a term
of one month or until the payment is made. [Paras 22, 23] [Per
Augustine George Masih, J.]
Code of Criminal Procedure, 1973 – s.127(3)(b) and s.125:
Held: The most appropriate construction of these secular provisions
of CrPC 1973 in regard to the right of maintenance is that the
legislature would never intend that an undue benefit is derived after
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the end of the marital relationship between the parties concerned –
Hence, the provision of Section 127(3)(b) of CrPC 1973 would act
in the nature of a proviso to the right provided under Section 125
of CrPC 1973 only in such a circumstance where sufficient means
of livelihood after the divorce, and the provisions contemplating
the future needs of divorced Muslim women, stands provided to
the satisfaction of the court concerned. [Para 32] [Per Augustine
George Masih, J.]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.3 – A
divorced Muslim woman is not restricted from exercising her
independent right of maintenance under the secular provision
of Section 125 of CrPC:
Held: This Court has clarified the intent of the Parliament by giving
beneficial construction to the expressions contemplated under
Section 3 of the 1986 Act, particularly, “within iddat period” by
observing that the Parliament never sought to restrict the rights
of a divorced Muslim woman to iddat period – Rather, by virtue of
the introduction of Section 3 of the 1986 Act in this socio-beneficial
legislation, the idea was to confer the benefit of maintenance as
well as a reasonable and fair provision for the lifetime of a divorced
Muslim woman, subject to her remarriage – Adding to this well-
expounded interpretation of the provisions of the 1986 Act, it is
hereby pertinent to highlight that a divorced Muslim woman is not
restricted from exercising her independent right of maintenance
under the secular provision of Section 125 of CrPC 1973, provided
she is able to prove the requisites encompassed by the said statute.
[Para 32] [Per Augustine George Masih, J.]
Code of Criminal Procedure, 1973 – s.127(3)(b) – The right for
seeking cancellation of an order by the husband:
Held: There shall arise a couple of peculiar circumstances while
considering the right for seeking cancellation of an order by the
husband concerned, through an application under Section 127(3)
(b) of CrPC 1973 – The first and settled circumstance is that, when
a divorced Muslim woman initially moves a petition under Section
125 of CrPC 1973 and seeks an order for maintenance as against
her former husband and only after receiving said entitlements,
she chooses to exercise her substantial rights as provided under
Section 3 of the 1986 Act, and therein, the husband is also able
[2024] 7 S.C.R. 1241
Mohd. Abdul Samad v. The State of Telangana & Anr.
to fulfil his concerned obligations to the appropriate satisfaction
of the court, ensuring her future maintenance – It is then and
only then that the husband can invoke and press his claim under
Section 127(3)(b) of CrPC 1973 to seek cancellation of an order,
if so, passed under Section 125 of CrPC 1973, directing him to
provide maintenance to his former wife. [Para 34] [Per Augustine
George Masih, J.]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.3 – Where a
husband has fulfilled his obligations under Section 3 of the
1986 Act – The divorced Muslim woman subsequently prefers
to invoke Section 125 of CrPC, 1973 on the ground of inability
to maintain herself:
Held: In a case where a husband has fulfilled his obligations under
Section 3 of the 1986 Act or as provided by customary or personal
law so followed, and the divorced Muslim woman subsequently
prefers to invoke Section 125 of CrPC 1973 on the ground of
inability to maintain herself, in such a factual matrix, undeniably, the
right to move under this provision is open in favour of a divorced
Muslim woman – When a husband opposes resort to Section 125
CrPC 1973, he has to establish that, (a) initial obligations under the
customary and/or personal statutory enactments as detailed earlier
stands fulfilled by him, and (b) that the wife, in the light of this, is
able to maintain herself – However, if the husband fails to sustain
the said objection(s) raised during the proceedings initiated under
Section 125 of CrPC 1973, and an order is accordingly passed, it
would not be inherently barred or liable to be cancelled through an
application under Section 127(3)(b) of CrPC 1973 – Nevertheless,
other appropriate remedies as provided under the CrPC 1973 or
any other law to that effect, shall always be open to be exercised
by such a husband to seek setting aside or appropriate modification
of an order so passed under Section 125 of CrPC 1973. [Para 35]
[Per Augustine George Masih, J.]
Code of Criminal Procedure, 1973 – s.125 – Reasonable
substitute – Double benefit:
Held: Undoubtedly, if a “reasonable substitute” has been provided
for by the husband as per their personal or customary laws at the
time of their divorce, the maintenance provided for by a Magistrate
or a Family Court, as the case may be, under Section 125 of CrPC
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1973, can be reduced to the extent of deemed double benefit being
given to a divorced wife. [Para 36] [Per Augustine George Masih, J.]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.3 – Secular
provision (s.125, CrPC) and personal law (s.3 of 1986 Act)
parallelly exist in distinct domains:
Held: 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 – 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.
[Para 37] [Per Augustine George Masih, J.]
Constitution of India – Arts.15(1) and (3) r/w. Art. 39(e) – Code
of Criminal Procedure, 1973 – s.125 – Right to maintenance
in a constitutional context:
Held: Section 125 of the CrPC is a measure of social justice with
a view to protect women and children and is aligned to the salutary
object enshrined in Article 15(1) and (3) of the Constitution read
with Article 39(e) of the Constitution – Article 15(3) is a fundamental
right while Article 39 is a Directive Principle of State Policy that is
fundamental in the governance of the country and it is the duty of
the State to apply these principles while making the law – Thus,
the statutory right to seek maintenance under Section 125 of the
CrPC is also embedded in the text, structure and philosophy of
the Constitution – Article 15(3), read with Article 39(e) manifests
a constitutional commitment towards special measures to ensure
a life of dignity for women at all stages of their lives – This ought
to be irrespective of the faith a woman belongs to – The remedy
of maintenance is a critical source of succour for the destitute, the
deserted and the deprived sections of women. [Paras 5, 6] [Per
B.V. Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Protection of
Women from Domestic Violence Act, 2005:
Held: Section 125 of the CrPC is independent of and in
addition to maintenance that could be awarded under the
Protection of Women from Domestic Violence Act, 2005 which
[2024] 7 S.C.R. 1243
Mohd. Abdul Samad v. The State of Telangana & Anr.
is applicable to an ‘aggrieved woman’ in a ‘shared household’ as
defined under the provisions of the aforesaid Act. [Para 7]
[Per B.V. Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – Provision (s.125,
CrPC) is meant to achieve a social purpose:
Held: A reading of Section 125 of the CrPC would indicate that the
intention of the said provision is to provide for a speedy remedy
and prevent vagrancy by compelling the husband to support the
wife – The provision is meant to achieve a social purpose – The
reason being, that after marriage, it is the duty of the husband
to provide shelter and maintenance to the wife in the Indian
context – Particularly, if she is unable to maintain herself – If he
neglects or refuses to do so, the wife is legally entitled to enforce
the said right by filing a petition under Section 125 of the CrPC
irrespective of any other right created in favour of the wife under
any other law – Therefore, the passing of the 1986 Act, cannot
militate against or dilute the salutary nature of Section 125 of the
CrPC – The object of this provision is to save a wife including a
divorced woman from deprivation and destitution. [Para 8] [Per
B.V. Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.127 – Cancellation of
order of maintenance:
Held: The crux of these judgments (Fuzlunbi vs. K. Khader Vali
and Mohd. Ahmed Khan vs. Shah Bano Begum) is that an order
under Section 127 ought to be a reasoned order and shall only
allow an order for maintenance to be cancelled if a judge was
satisfied that the divorced woman had received a sufficient amount
of maintenance under any customary or personal law. [Para 16]
[Per B.V. Nagarathna, J. (concurring)]
Interpretation of Statutes – Non-obstante clause – Meaning of:
Held: A non-obstante clause is usually appended to a Section in
the beginning with a view to give the enacting part of the Section,
in case of a conflict, an overriding effect over the provision or
Act mentioned in the non-obstante clause – In other words, in
spite of the provision or the Act mentioned in the non-obstante
clause, the enactment following it will have its full operation or
that the provisions embraced in the non-obstante clause will not
be an impediment for the operation of the enactment – Thus, a
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non-obstante clause is a legislative device used by a Parliament
or legislature sometimes to give an overriding effect to what has
been specified in the enacting part of a section in case of a conflict
with what is contained in the non-obstante clause as stated above.
[Para 23] [Per B.V. Nagarathna, J. (concurring)]
Interpretation of Statutes – Non-obstante clause, expression
“subject to”, expression “notwithstanding anything in any
other law”:
Held: A non-obstante clause has to be distinguished from the
expression “subject to” where the latter would convey the idea of
a provision yielding place to another provision or other provisions
to which it is made subject to – The expression “notwithstanding
anything in any other law ” in a Section of an Act has to be contrasted
with the use of the expression “notwithstanding anything contained
in this Act ”, which has to be construed to take away the effect
of any provision of that particular Act in which the section occurs
but it cannot take away the effect of any other law. [Para 23] [Per
B.V. Nagarathna, J. (concurring)]
Interpretation of Statutes – Non-obstante clause – Utility of:
Held: The utility of non-obstante clause is where there is a
conflict between what is stated in a provision and any other law
for the time being in force, or anything else contained in the said
enactment – As already noted, only in the case of a conflict, the
object is to give the enacting or operative portion of the section an
overriding effect, not otherwise – In other words, only in a case of
a conflict, a provision in an enactment containing a non-obstante
clause, would be given its full operation and what is stated in the
non-obstante clause will not be an impediment for the operation of
the particular provision in the enactment – This would mean that
what is stated in the non-obstante clause would not take away the
effect of any provision of the Act which follows the same. [Para
25] [Per B.V. Nagarathna J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.3 – Section
3(1) begins with a non-obstante clause as, “notwithstanding
anything contained in any other law for the time being in
force” – Intention of Parliament:
Held: The intent of the Parliament which can be gathered from
the use of such a non-obstante clause is to enhance the right of a
[2024] 7 S.C.R. 1245
Mohd. Abdul Samad v. The State of Telangana & Anr.
divorced Muslim woman in addition to what she would have been
entitled to under Section 125 of the CrPC – If the intent of the
Parliament was otherwise, i.e., to curtail the rights of a divorced
Muslim woman then the non-obstante clause would not have found
a place in sub-section (1) of Section 3 of the 1986 Act – This is
evident from the fact that while enacting the 1986 Act, Parliament
did not simultaneously or at anytime thereafter create any bar for a
divorced Muslim woman from claiming maintenance under Section
125 of the CrPC and thereby constrain her to proceed to make a
claim only under the provisions of the 1986 Act – Neither is there
any bar, express or implied under the 1986 Act, to the effect that
a divorced Muslim woman cannot unilaterally seek maintenance
under Section 125 of the CrPC – One cannot read Section 3 of
the 1986 Act containing the non-obstante clause so as to restrict
or diminish the right to maintenance of a divorced Muslim woman
under Section 125 of the CrPC and neither is it a substitute for the
latter. [Para 28] [Per B.V. Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.4:
Held: The expression “notwithstanding anything contained in
the foregoing provisions of this Act or any other law for the time
being in force” in sub-section (1) of Section 4, is indicative of the
fact that the Magistrate can order for maintenance of a divorced
Muslim woman being entitled to maintenance as per the provisions
of the said Act – Further, sub-section (1) of Section 4 takes into
consideration the period after the iddat period while sub-section (1)
of Section 3 deals with a period which is within the iddat period –
This Section is akin to Section 125 of the CrPC for a reasonable
and fair provision of maintenance to be made. [Para 29] [Per B.V.
Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – ss.3, 4 – A
divorced Muslim woman is entitled to seek recourse to either
or both the provisions:
Held: The rights created under the provisions of the 1986 Act
are in addition to and not in derogation of the right created under
Section 125 of the CrPC – The non-obstante clause in Sub-section
(1) of Section 3 cannot result in Sections 3 and 4 of the 1986
Act whittling down the application of Section 125 of the CrPC
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and allied provisions of the CrPC to a divorced Muslim woman –
Therefore, if a divorced Muslim woman approaches the Magistrate
for enforcement of her rights under Section 125 of the CrPC, she
cannot be turned away to seek relief only under Sections 3 and
4 of the 1986 Act as is sought to be contended by the appellant
herein – In other words, such a divorced Muslim woman is entitled
to seek recourse to either or both the provisions – The option lies
with such a woman – The Court would have to ultimately balance
between the amount awarded under the 1986 Act and the one to
be awarded under Section 125 of the CrPC. [Para 30] [Per B.V.
Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.3 – Where a
divorced woman maintains the children born to her:
Held: Under Section 3(1)(b) of the 1986 Act, where a divorced
woman maintains the children born to her before or after her
divorce, a reasonable and fair provision and maintenance has
to be made and paid by her former husband only for a period of
two years from the respective dates of birth of such children and
not beyond the said period – However, under Section 125 of the
CrPC, there is no such restriction of maintenance to be provided
only for a period of two years from the respective dates of birth
of such children in the case of a divorced wife – The obligation
is until the children attain the age of majority and in terms of the
said Section. [Para 40 (iii)] [Per B.V. Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – Section 125 of
the CrPC is a more beneficial provision as compared to the
provisions of the 1986 Act:
Held: What is of further significance is the fact that by Act 50
of 2001 [by Section 2(i)(a)] w.e.f. 24.09.2001, sub-section (1) of
Section 125 of the CrPC has been amended to delete the words
“not exceeding 500 rupees in the whole” – By way of this omission,
there is no upper limit fixed for payment of maintenance under
the said provision – Therefore, Section 125 of the CrPC is a more
beneficial provision as compared to the provisions of the 1986 Act
vis-à-vis a Muslim divorced woman in the context of the obligations
of a former husband and the rights of a divorced Muslim woman –
This amendment to Section 125 of the CrPC being subsequent to
[2024] 7 S.C.R. 1247
Mohd. Abdul Samad v. The State of Telangana & Anr.
the enforcement of the 1986 Act, is so significant that it virtually
makes Section 3 of the 1986 Act very narrow and insignificant
although the expression “provision” under Section 3(1) of the 1986
Act has been broadly interpreted by this Court in Danial Latifi.
[Para 40 (v)] [Per B.V. Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Divorce) Act, 1986 – s.3 – Both
provisions operate in two separate fields:
Held: If a divorced Muslim woman files an application for
maintenance under Section 125 of the CrPC, there is no provision
for considering the same under Section 3 of the 1986 Act – The
reasons for the same are not far to see: Firstly, Section 125 of the
CrPC and Section 3(1) of the 1986 Act operate in two separate
fields – The former is a statutory right created, inter-alia, for all
divorced women, irrespective of the faith they may belong to or
follow – On the other hand, the 1986 Act is in the nature of a
personal law which applies to only divorced Muslim women who
were married under Muslim law and divorced under the said law.
[Para 40(vii)] [Per B.V. Nagarathna, J. (concurring)]
Code of Criminal Procedure, 1973 – s.125 – Muslim Women
(Protection of Rights on Marriage) Act, 2019:
Held: When divorce is void and illegal, such a Muslim woman can
seek remedy under Section 125 of the CrPC. [Para 41] [Per B.V.
Nagarathna, J. (concurring)]
Case Law Cited
AUGUSTINE GEORGE MASIH, J.
Danial Latifi and Another v. Union of India [2001] Supp. 3 SCR
419 : (2001) 7 SCC 740; Mohd. Ahmed Khan v. Shah Bano Begum
and Others [1985] 3 SCR 844 : (1985) 2 SCC 556 – followed.
Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 – relied on.
M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation
of India and Another [1981] 1 SCR 498 : (1980) 4 SCC 435;
Chennupati Kranthi Kumar v. State of Andhra Pradesh and Others
(2023) 8 SCC 251; Iqbal Bano v. State of Uttar Pradesh and
Another [2007] 7 SCR 949 : (2007) 6 SCC 785; Shri Bhagwan
Dutt v. Smt. Kamla Devi and Another [1975] 2 SCR 483 : (1975)
2 SCC 386; Inderjit Kaur v. Union of India and Others (1990) 1
1248 [2024] 7 S.C.R.
Digital Supreme Court Reports
SCC 344; Fuzlunbi v. K. Khader Vali and Another [1980] 3 SCR
1127 : (1980) 4 SCC 125; Shabana Bano v. Imran Khan [2009]
16 SCR 190 : (2010) 1 SCC 666; Khatoon Nisa v. State of Uttar
Pradesh and Others (2014) 12 SCC 646; Shamim Bano v. Asraf
Khan [2014] 4 SCR 844 : (2014) 12 SCC 636 – referred to.
Shahid Jamal Ansari v. State of Uttar Pradesh (2008) SCC OnLine
All 1077 – held not correct law.
Kunhimohammed v. Ayishakutty (2010) SCC OnLine Ker 567 –
approved.
Mumtazben Jusabbhai Sipahi v. Mahebubkhan Usmankhan Pathan,
1998 SCC OnLine Guj 279; Mrs. Humera Khatoon and Others v.
Mohd. Yaqoob (2010) SCC OnLine All 202; Sazid v. State of Uttar
Pradesh and Others (2011) SC OnLine All 1059; Jubair Ahmad
v. Ishrat Bano (2019) SCC OnLine All 4065; Shakila Khatun v.
State of Uttar Pradesh and Another (2023) SCC OnLine All 75;
Khalil Abbas Fakir v. Tabbasum Khalil Fakir and Another (2024)
SCC OnLine Bom 23 – referred to.
B.V. NAGARATHNA, J.
Danial Latifi v. Union of India [2001] Supp. 3 SCR 419 : (2001)
7 SCC 740; Mohd. Ahmed Khan v. Shah Bano Begum [1985] 3
SCR 844 : (1985) 2 SCC 556; Curative Petition (C) No.44 of 2023
in Review Petition (C) No.704 of 2021 arising out of Civil Appeal
No.1599 of 2020 (In Re : Interplay between Arbitration Agreements
under the Arbitration and Conciliation Act, 1996) – followed.
Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkh [1982]
1 SCR 695 : AIR 1981 SC 1972; Prabha Tyagi v. Kamlesh Devi
[2022] 5 SCR 970 : (2022) 8 SCC 90 – relied on.
Jagir Kaur v. Jaswant Singh [1964] 2 SCR 73; Bhagwan Dutt v.
Kamla Devi [1975] 2 SCR 483 : (1975) 2 SCC 386; Jasbir Kaur
Sehgal v. District Judge, Dehradun [1997] Supp. 3 SCR 529 : (1997)
7 SCC 7; Bhuwan Mohan Singh v. Meena [2014] 8 SCR 858 :
(2015) 6 SCC 353; Reema Salkan v. Sumer Singh Salkan [2018]
12 SCR 350 : (2019) 12 SCC 303; Bai Tahira v. Ali Hussain Fidaalli
Chothia [1979] 2 SCR 75 : (1979) 2 SCC 316; Fuzlunbi v. K. Khader
Vali [1980] 3 SCR 1127 : (1980) 4 SCC 125; Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram [1986] 3 SCR 866 : (1986) 4 SCC
447; ICICI Bank Ltd. v. SIDCO Leathers Ltd. [2006] Supp. 1 SCR
[2024] 7 S.C.R. 1249
Mohd. Abdul Samad v. The State of Telangana & Anr.
528 : (2006) 10 SCC 452; Aswini Kumar Ghosh v. Arabinda Bose
[1953] 1 SCR 1 : AIR 1952 SC 369; Municipal Corporation, Indore
v. Ratnaprabha, AIR 1977 SC 308; Sabra Shamim v. Maqsood
Ansari (2004) 9 SCC 616; Binoy Viswam v. Union of India [2017]
7 SCR 1 : (2017) 7 SCC 59; Navtej Singh Johar v. Union of India
[2018] 7 SCR 379 : (2018) 10 SCC 1; Shabana Bano v. Imran
Khan [2009] 16 SCR 190 : (2009) 14 SCALE 331; Juveria Abdul
Majid Patni v. Atif Iqbal Mansoori [2014] 10 SCR 479 : (2014) 10
SCC 736; Rana Nahid @ Reshma @ Sana v. Sahidul Haq Chisti
[2020] 7 SCR 324 : (2020) 7 SCC 657; Kirti v. Oriental Insurance
Co. Ltd. [2021] 1 SCR 989 : (2021) 2 SCC 166 – referred to.
Kunhi Moyin v. Pathumma, 1976 KLT 87; Karim Abdul Rehman
Shaikh v. Shehnaz Karim Shaikh (2000) SCC OnLine Bom 446;
Abdul Hameed v. Fousiya (2004) 3 KLT 1049 – referred to.
Books and Periodicals Cited
Principles of Statutory Interpretation by Justice G.P. Singh, 15th
Edition, Chapter 5.4, p.284]
List of Acts
Code of Criminal Procedure, 1973; Muslim Women (Protection
of Rights on Marriage) Act, 2019; Muslim Women (Protection of
Rights on Divorce) Act, 1986; Constitution of India.
List of Keywords
Section 125 of Code of Criminal Procedure, 1973; Section 127(3)
(b) of Code of Criminal Procedure, 1973; Section 3 of Muslim
Women (Protection of Rights on Divorce) Act, 1986; Section 5 of
of the Muslim Women (Protection of Rights on Marriage) Act, 2019;
Muslim married woman; Non-muslim divorced woman; Divorced
muslim woman; Illegal divorce; Maintenance; Non-obstante clause;
Social justice; Secular provision; Personal law; Socio-beneficial
legislation; Deprivation; Destitution.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2842
of 2024
From the Judgment and Order dated 13.12.2023 of the High Court
for the State of Telangana at Hyderabad in CRP No. 12222 of 2023
1250 [2024] 7 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Gaurav Agrawal, Sr. Adv., Amicus Curiae.
S. Wasim A. Qadri, Sr. Adv., Manan Daga, Ms. Udita Singh, Tamim
Qadri, Saeed Qadri, Shraveen Kumar Verma, Mrs. Kareena Fareed,
Saahil Gupta, Deepak Bhati, Shvendra Singh, Advs. for the Appellant.
Respondent-in-person.
Judgment / Order of the Supreme Court
Judgment
Augustine George Masih, J.
1. Leave granted.
2. This appeal challenges the Order dated 13.12.2023 passed in Criminal
Petition No. 12222 of 2023 moved under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “CrPC 1973”),
whereby the High Court of Telangana modified the Order dated
09.06.2023 passed by the Family Court in M.C No. 171 of 2019.
By virtue of disposing of the said petition, the High Court decreased
the quantum of interim maintenance payable by the Appellant herein
from INR 20,000/- (Rupees Twenty Thousand only) per month to INR
10,000/- (Rupees Ten Thousand only) per month.
3. As per the Appellant, the brief facts leading to the instant appeal are
that the Appellant herein was the husband of the Respondent No. 02.
Both the parties entered the matrimonial consortium on 15.11.2012.
However, as their relationship deteriorated, Respondent No. 02 left
the matrimonial home on 09.04.2016. Subsequently, Respondent No.
02 initiated criminal proceedings against the Appellant by lodging FIR
No. 578 of 2017 for offences punishable under Sections 498A and
406 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC
1860”). In response, the Appellant herein pronounced a triple talaq
on 25.09.2017 and moved for divorce before the office of Quzath
seeking a declaration of divorce, which was eventually granted ex
parte, and the divorce certificate was issued on 28.09.2017.
4. It is further claimed that he attempted to send INR 15,000/- (Rupees
Fifteen Thousand only) apropos maintenance for the iddat period,
which the Respondent No. 02 is said to have refused. Instead, she
moved a petition for interim maintenance under Section 125(1) of
[2024] 7 S.C.R. 1251
Mohd. Abdul Samad v. The State of Telangana & Anr.
CrPC 1973 before the Family Court vide M.C. No. 171 of 2019,
which was consequently allowed vide Order dated 09.06.2023.
Seeking quashing of the said Order, the Appellant herein moved
the High Court of Telangana, eventually leading to passing of the
instant Impugned Order dated 13.12.2023.
5. The prime contention of the Appellant while moving this Court is that
the provisions of Section 125 of CrPC 1973 do not prevail in light of
the enactment of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 (hereinafter referred to as the “1986 Act”). Furthermore, it
is contended that even if a “divorced Muslim woman” seeks to move
the court under the secular provision of Section 125 of CrPC 1973,
it would not be maintainable, rather the correct procedure would be
to file an application under Section 5 of the 1986 Act, which is not
the case herein.
6. To substantiate the said contentions, the learned Senior Advocate
for the Appellant herein, vehemently argued that since the 1986
Act provides a more beneficial and efficacious remedy for divorced
Muslim women in contradistinction to Section 125 of CrPC 1973,
thereby the recourse lies exclusively under the 1986 Act. In addition,
it is submitted that the 1986 Act being a special law, prevails over
the provisions of CrPC 1973. To buttress his contentions, reliance
is placed on a decision rendered by a 3-Judge Bench in M/s. Jain
Ink Manufacturing Company v. Life Insurance Corporation of
India and Another (1980) 4 SCC 435 wherein this Court went on
to hold that a special law would supersede a general law and if such
conflicting statutes are passed by the same legislature, the rule of
harmonious construction is to be applied while interpreting the said
statutes. Several other judgments to this effect were also brought
to our notice with the similar position being reiterated as in a recent
judgment of this Court in Chennupati Kranthi Kumar v. State of
Andhra Pradesh and Others (2023) 8 SCC 251.
7. He further emphasised that Sections 3 and 4 of the 1986 Act,
commencing with a non-obstante clause, shall have an overriding
effect on any other statute operating in the same field. An
acknowledgment to this effect is said to have been found in a
5-Judge Bench in Danial Latifi and Another v. Union of India
(2001) 7 SCC 740 and specifically in paragraph numbers 21 to 24.
Further reliance is placed on paragraph numbers 03, 07, 08, and
1252 [2024] 7 S.C.R.
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09 of the judgment in Iqbal Bano v. State of Uttar Pradesh and
Another (2007) 6 SCC 785. Another limb of his submission is based
upon the transitional provision of Section 7 of the 1986 Act, in an
attempt to establish supersedence and clarity as to the intent of the
legislature on prevalence of the 1986 Act and the procedure and
rights contemplated therein.
8. To assist this Court, Mr Gaurav Agrawal, Senior Advocate, was
appointed as amicus curiae vide Order dated 09.02.2024, who
eventually went on to submit that the remedy under a secular
statutory provision of Section 125 of CrPC 1973 is not foreclosed
for a divorced Muslim woman by virtue of enactment of a personal
law remedy under Section 3 of the 1986 Act to the limited extent of
maintenance, as the latter does not in any manner, expressly or by
necessary implication, bar the exercise of former remedy. To buttress
this submission, he went on to highlight the distinction between the
very object and purpose of the aforesaid provisions. Mr Agrawal,
while also extensively referring to the 5-Judge Bench decision in
Danial Latifi (supra), goes on to submit that the explicit question
as to whether the non-obstante clause in Section 3 of the 1986 Act
takes away the rights under Section 125 of CrPC 1973, was not
dealt by this Court therein. However, it is his contention that the
observations in paragraph number 33 of this judgment suggest an
interpretation that a divorced Muslim woman is also entitled to all
the rights of maintenance as are available to other equally situated
women in the country and an interpretation otherwise would only
infringe upon the fundamental rights conferred through Articles 14,
15, and 21 of the Constitution of India 1950 (hereinafter referred to
as “Constitution of India”).
9. Mr Agrawal also brought to our attention numerous oppugnant
decisions of the High Courts, thus bringing out the conflict between
the provisions while interpreting the provisions of the 1986 Act vis-
à-vis CrPC 1973, as aforementioned. A reference to these decisions
would be made as part of the analysis hereinafter.
10. We have heard the learned Senior Advocate for the Appellant, as
well as the learned amicus curiae at length and in the light of their
submissions, it is requisite to consider the historical perspective,
the grey areas leading to a clarified position of law by this Court
regarding the secular provision of maintenance under Section 125
[2024] 7 S.C.R. 1253
Mohd. Abdul Samad v. The State of Telangana & Anr.
of CrPC 1973, as well as the rights guaranteed under personal law
to a divorced Muslim woman through Section 3 of the 1986 Act.
11. The legislature through Section 488 of the Code of Criminal Procedure,
1898, and subsequently by introducing Section 125 CrPC 1973,
sought to carry on the efficacious remedy through a summary
procedure in favour of a wife, including a divorced woman, and
others as applicable. To better comprehend the instant provision,
the same is reproduced hereinbelow:
“125. Order for maintenance of wives, children and
parents.—
(1) If any person having sufficient means neglects or
refuses to maintain—
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority,
where such child is, by reason of any physical or
mental abnormality or injury unable to maintain
itself, or
(d) his father or mother, unable to maintain himself
or herself,
a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate as such Magistrate
thinks fit and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a
minor female child referred to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child,
if married, is not possessed of sufficient means
Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance
for the maintenance under this sub-section, order such
1254 [2024] 7 S.C.R.
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person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person
as the Magistrate may from time to time direct
Provided also that an application for the monthly allowance
for the interim maintenance and expenses of proceeding
under the second proviso shall, as far as possible, be
disposed of within sixty days from the date of the service
of notice of the application to such person.
Explanation.—For the purposes of this Chapter,—
(a) “minor” means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875) is deemed not to have attained his
majority;
(b) “wife” includes a woman who has been divorced
by, or has obtained a divorce from, her husband
and has not remarried.
(2) Any such allowance for the maintenance or interim
maintenance and expenses of proceeding shall be payable
from the date of the order, or, if so ordered, from the date
of the application for maintenance or interim maintenance
and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause
to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying
the amount due in the manner provided for levying fines,
and may sentence such person, for the whole or any part
of each month’s allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the
case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery
of any amount due under this section unless application
be made to the Court to levy such amount within a period
of one year from the date on which it became due:
[2024] 7 S.C.R. 1255
Mohd. Abdul Samad v. The State of Telangana & Anr.
Provided further that if such person offers to maintain his
wife on condition of her living with him, and she refuses to
live with him, such Magistrate may consider any grounds
of refusal stated by her, and may make an order under
this section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.—If a husband has contracted marriage with
another woman or keeps a mistress, it shall be considered
to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the
maintenance or the interim maintenance and expenses of
proceeding, as the case may be, from her husband under
this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or
if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section in living in adultery,
or that without sufficient reason she refuses to live with
her husband, or that they are living separately by mutual
consent.”
12. Numerous decisions of this Court went on to state that Section 125
of CrPC 1973 is a measure for social justice to protect the weaker
sections, irrespective of applicable personal laws of the parties, as
contemplated through Articles 15(3) and 38 of the Constitution of
India. This Court similarly held in the decision of Shri Bhagwan
Dutt v. Smt. Kamla Devi and Another (1975) 2 SCC 386 that the
nature of power and jurisdiction vested with a Magistrate by virtue
of the instate provision is not punitive in nature and neither it is
remedial, but it is a preventive measure. It was also observed that
while any such right may or may not exist as a consequence of
any of the personal laws applicable to the concerned parties, they
shall continue to exist distinctively, and independently as against
the secular provision.
13. The purpose of Section 125 of CrPC 1973 has been spelt out to
prevent vagrancy and destitution of the person claiming rights through
invoking the procedure established under the said provision. However,
in Inderjit Kaur v. Union of India and Others (1990) 1 SCC 344, it
1256 [2024] 7 S.C.R.
Digital Supreme Court Reports
was clarified qua the wife that such a right is not absolute in nature
and is always subject to final determination of the rights of the parties
by appropriate courts. Further emphasis has also been placed on
the expression “unable to maintain herself” and that the burden of
proof is on the wife to prove the existence of said circumstances
leading to such inability. This is, in addition, to the requirement to
establish that the husband has “sufficient means” to maintain her,
and is, however, neglecting or refusing to do so.
14. In Fuzlunbi v. K. Khader Vali and Another (1980) 4 SCC 125 (SC),
it was categorically observed by this Court that enactment of the
said provision charges the court with a deliberate secular design to
enforce maintenance or its equivalent against the humane obligation,
which is derived from the State’s responsibility for social welfare.
The same is not confined to members of one religion or region, but
the whole community of womanhood.
15. At this stage, it is pertinent to consider the concerned personal
laws which allegedly stand in conflict with the secular provision of
Section 125 of CrPC 1973. The 1986 Act was brought about by the
legislature as an attempt to clarify the position laid down.
A 5-Judge Bench in Mohd. Ahmed Khan v. Shah Bano Begum
and others (1985) 2 SCC 556 extensively dealt with the issue
of maintenance apropos the obligation of a Muslim husband to
his divorced wife who is unable to maintain herself, either after
having been given divorce or having had sought one. The Bench
unanimously went on to hold that the obligation of such a husband
would not be affected by the existence of any personal law in the
said regard and the independent remedy for seeking maintenance
under Section 125 of CrPC 1973 is always available. It also went
on to observe that, even assuming, there is any conflict between
the secular and personal law provisions in regard to maintenance
being sought by a divorced wife, the Explanation to second Proviso
to Section 125(3) of CrPC 1973 unmistakably shows the overriding
nature of the former. While elaborating on the said observation, it
explained that the wife has been conferred with the right to refuse
to live with her husband who has contracted another marriage, let
alone three or four other marriages.
16. After the pronouncement of the aforesaid verdict, a controversy is said
to have emerged anent the true obligations of a Muslim husband to
[2024] 7 S.C.R. 1257
Mohd. Abdul Samad v. The State of Telangana & Anr.
pay maintenance to his divorced wife, particularly beyond the iddat
period. The Parliament, as an attempt to clarify the position, brought
about the 1986 Act. Herein, it was sought to specify the entitlements
of such a woman at the time of divorce. Section 3 of the 1986 Act
deals with this aspect and reads as follows:
“3. Mahr or other properties of Muslim woman to be
given to her at the time of divorce.—
(1) Notwithstanding anything contained in any other law
for the time being in force, a divorced woman shall be
entitled to—
(a) a reasonable and fair provision and maintenance
to be made and paid to her within the iddat
period by her former husband;
(b) where she herself maintains the children born
to her before or after her divorce, a reasonable
and fair provision and maintenance to be made
and paid by her former husband for a period
of two years from the respective dates of birth
of such children;
(c) an amount equal to the sum of mahr or dower
agreed to be paid to her at the time of her
marriage or at any time thereafter according
to Muslim law; and
(d) all the properties given to her before or at
the time of marriage or after her marriage by
her relatives or friends or the husband or any
relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance
or the amount of mahr or dower due has not been made
or paid or the properties referred to in clause (d) of
sub-section (1) have not been delivered to a divorced
woman on her divorce, she or any one duly authorised
by her may, on her behalf, make an application to a
Magistrate for an order for payment of such provision and
maintenance, mahr or dower or the delivery of properties,
as the case may be.
1258 [2024] 7 S.C.R.
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(3) Where an application has been made under sub-
section (2) by a divorced woman, the Magistrate may, if
he is satisfied that—
(a) her husband having sufficient means, has
failed or neglected to make or pay her within
the iddat period a reasonable and fair provision
and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower
has not been paid or that the properties referred
to in clause (d) of sub-section (1) have not been
delivered to her,
make an order, within one month of the date of the filing
of the application, directing her former husband to pay
such reasonable and fair provision and maintenance to
the divorced woman as he may determine as it and proper
having regard to the needs of the divorced woman, the
standard of life enjoyed by her during her marriage and
the means of her former husband or, as the case may be,
for the payment of such mahr or dower or the delivery of
such properties referred to in clause (d) of sub-section (1)
the divorced woman:
Provided that if the Magistrate finds it impracticable to
dispose of the application within the said period, he may, for
reasons to be recorded by him, dispose of the application
after the said period.
(4) If any person against whom an order has been made
under sub-section (3) fails without sufficient cause to
comply with the order, the Magistrate may issue a warrant
for levying the amount of maintenance or mahr or dower
due in the manner provided for levying fines under the
Code of Criminal Procedure, 1973 (2 of 1974), and may
sentence such person, for the whole or part of any amount
remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one year or
until payment if sooner made, subject to such person being
heard in defence and the said sentence being imposed
according to the provisions of the said Code.”
[2024] 7 S.C.R. 1259
Mohd. Abdul Samad v. The State of Telangana & Anr.
17. After the 1986 Act came into force, a series of writ petitions were
moved before this Court challenging its constitutional validity on
ground of being violative of Articles 14, 15 and 21 of the Constitution
of India. Sections 3 and 4 of the 1986 Act were the principal sections
under attack as part of the said writ petitions. Section 3, which opens
up with a non-obstante clause seeking to override the application
of all other existing laws, was carefully perused by this Court in the
common verdict rendered on the constitutional validity in the decision
in Danial Latifi (supra). Elaborating on the prevalence of Section
125 of CrPC 1973 as a secular protection available to women across
communities, it was observed in paragraph number 33 as follows:
“33. In Shah Bano case [(1985) 2 SCC 556: 1985 SCC
(Cri) 245] this Court has clearly explained as to the
rationale behind Section 125 CrPC to make provision for
maintenance to be paid to a divorced Muslim wife and
this is clearly to avoid vagrancy or destitution on the part
of a Muslim woman. The contention put forth on behalf of
the Muslim organisations who are interveners before us
is that under the Act, vagrancy or destitution is sought to
be avoided but not by punishing the erring husband, if at
all, but by providing for maintenance through others. If for
any reason the interpretation placed by us on the language
of Sections 3(1)(a) and 4 of the Act is not acceptable, we
will have to examine the effect of the provisions as they
stand, that is, a Muslim woman will not be entitled to
maintenance from her husband after the period of iddat
once the talaq is pronounced and, if at all, thereafter
maintenance could only be recovered from the various
persons mentioned in Section 4 or from the Wakf Board.
This Court in Olga Tellis v. Bombay Municipal Corpn.
[(1985) 3 SCC 545] and Maneka Gandhi v. Union of India
[(1978) 1 SCC 248] held that the concept of “right to life
and personal liberty” guaranteed under Article 21 of the
Constitution would include the “right to live with dignity”.
Before the Act, a Muslim woman who was divorced by
her husband was granted a right to maintenance from her
husband under the provisions of Section 125 CrPC until
she may remarry and such a right, if deprived, would not
be reasonable, just and fair. Thus the provisions of the
1260 [2024] 7 S.C.R.
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Act depriving the divorced Muslim women of such a right
to maintenance from her husband and providing for her
maintenance to be paid by the former husband only for
the period of iddat and thereafter to make her run from
pillar to post in search of her relatives one after the other
and ultimately to knock at the doors of the Wakf Board
does not appear to be reasonable and fair substitute of the
provisions of Section 125 CrPC. Such deprivation of the
divorced Muslim women of their right to maintenance from
their former husbands under the beneficial provisions of the
Code of Criminal Procedure which are otherwise available
to all other women in India cannot be stated to have been
effected by a reasonable, right, just and fair law and, if these
provisions are less beneficial than the provisions of Chapter
IX of the Code of Criminal Procedure, a divorced Muslim
woman has obviously been unreasonably discriminated and
got out of the protection of the provisions of the general
law as indicated under the Code which are available to
Hindu, Buddhist, Jain, Parsi or Christian women or women
belonging to any other community. The provisions prima
facie, therefore, appear to be violative of Article 14 of the
Constitution mandating equality and equal protection of law
to all persons otherwise similarly circumstanced and also
violative of Article 15 of the Constitution which prohibits
any discrimination on the ground of religion as the Act
would obviously apply to Muslim divorced women only
and solely on the ground of their belonging to the Muslim
religion. It is well settled that on a rule of construction, a
given statute will become “ultra vires” or “unconstitutional”
and, therefore, void, whereas on another construction
which is permissible, the statute remains effective and
operative the court will prefer the latter on the ground that
the legislature does not intend to enact unconstitutional
laws. We think, the latter interpretation should be accepted
and, therefore, the interpretation placed by us results in
upholding the validity of the Act. It is well settled that
when by appropriate reading of an enactment the validity
of the Act can be upheld, such interpretation is accepted
by courts and not the other way round.”
[2024] 7 S.C.R. 1261
Mohd. Abdul Samad v. The State of Telangana & Anr.
While the Court prima facie observed the said provisions to be
violative of Articles 14 and 15 of the Constitution of India, the latter
interpretation, seeking to uphold the validity, was eventually adopted
and the 1986 Act was read down to not foreclose the secular rights
of a divorced Muslim woman.
18. The position that the rights under Section 125 of CrPC 1973 would
also be accessible to a divorced Muslim woman was substantially
reiterated in Shabana Bano v. Imran Khan (2010) 1 SCC 666,
whereby this Court, through a cumulative reading of the decision in
Danial Latifi (supra), reached the said conclusion.
19. The same question of law again knocked on the doors of this Court
in Khatoon Nisa v. State of Uttar Pradesh and Others (2014) 12
SCC 646 wherein the 5-Judge Bench also took the assistance of the
observations made in the decision in Danial Latifi (supra). While
acknowledging the similar parameters and considerations for the
purpose of adjudicating petitions under both the laws, secular and
personal, it held that a divorced Muslim woman is entitled to invoke
the jurisdiction under Section 125 of CrPC 1973 to seek her right of
maintenance even if she does not exercise her choice of election as
stipulated under Section 5 of the 1986 Act. The relevant paragraph
number 10 is reproduced herein below:
“10. Subsequent to the enactment of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (for short
“the Act”) as it was considered that the jurisdiction of the
Magistrate under Section 125 CrPC can be invoked only
when the conditions precedent mentioned in Section 5 of the
Act are complied with, in the case in hand, the Magistrate
came to a finding that there has been no divorce in the eye
of law and as such, the Magistrate has the jurisdiction to
grant maintenance under Section 125 CrPC. This finding
of the Magistrate has been upheld by the High Court. The
validity of the provisions of the Act was for consideration
before the Constitution Bench in the case of Danial Latifi
v. Union of India [(2001) 7 SCC 740]. In the said case by
reading down the provisions of the Act, the validity of the
Act has been upheld and it has been observed that under
the Act itself when parties agree, the provisions of Section
125 CrPC could be invoked as contained in Section 5 of
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the Act and even otherwise, the Magistrate under the Act
has the power to grant maintenance in favour of a divorced
woman, and the parameters and considerations are the
same as those in Section 125 CrPC. It is undoubtedly
true that in the case in hand, Section 5 of the Act has
not been invoked. Necessarily, therefore, the Magistrate
has exercised his jurisdiction under Section 125 CrPC.
But, since the Magistrate retains the power of granting
maintenance in view of the Constitution Bench decision in
Danial Latifi case [(2001) 7 SCC 740] under the Act and
since the parameters for exercise of that power are the
same as those contained in Section 125 CrPC, we see no
ground to interfere with the orders of the Magistrate granting
maintenance in favour of a divorced Muslim woman. In
fact, Mr Qamaruddin, learned counsel appearing for the
appellants, never objected to pay maintenance as ordered
by the Magistrate. But, he seriously disputes the findings
of the Magistrate on the status of the parties and contends
that the Magistrate was wholly in error in coming to the
conclusion that there has been no divorce between the
parties in the eye of law.”
(Underlining is ours)
20. Subsequently, in Shamim Bano v. Asraf Khan (2014) 12 SCC 636,
this Court had to consider the maintainability of a petition under Section
125 of CrPC 1973 vis-à-vis a situation where a petition under Section
3 of the 1986 Act has been subsequently moved. Holding that an
election under Section 5 of the 1986 Act was not imperative, since
both the petitions were moved before a Magistrate, it clarified that
even for the purpose of adjudicating a petition under the personal law,
specifically in regard to maintenance for a divorced Muslim woman,
the parameters of Section 125 of CrPC 1973 would be applicable.
21. It is imperative to acknowledge that the enactment of the Family Courts
Act, 1984 (hereinafter referred to as “FCA 1984”) had excluded the
jurisdiction of a Magistrate under Chapter IX of CrPC 1973, of which
Section 125 is a part, wherein a Family Court had been established for
the concerned area or jurisdiction. After the enactment of FCA 1984,
a situation arose where a divorced Muslim woman moved a Family
Court under Section 125 of CrPC 1973, and a similar circumstance
[2024] 7 S.C.R. 1263
Mohd. Abdul Samad v. The State of Telangana & Anr.
was dealt in Shamima Farooqui v. Shahid Khan (2015) 5 SCC
705 in light of the question of law at hand. Herein, while relying
on the earlier mentioned judgments of this Court, it observed that
the concerned Family Court had rightly, and without a shadow of a
doubt, held that Section 125 of CrPC 1973 would be applicable. The
relevant paragraph number 09 is reproduced below:
“9. First of all, we intend to deal with the applicability of
Section 125 CrPC to a Muslim woman who has been
divorced. In Shamim Bano v. Asraf Khan [(2014) 12
SCC 636 : (2014) 5 SCC (Civ) 145 : (2014) 5 SCC (Cri)
162], this Court after referring to the Constitution Bench
decisions in Danial Latifi v. Union of India [(2001) 7 SCC
740 : (2007) 3 SCC (Cri) 266] and Khatoon Nisa v. State
of U.P. [Khatoon Nisa v. State of U.P. (2014) 12 SCC 646 :
(2014) 5 SCC (Civ) 155 : (2014) 5 SCC (Cri) 170] had
opined as follows : (Shamim Bano case [(2014) 12 SCC
636 : (2014) 5 SCC (Civ) 145 : (2014) 5 SCC (Cri) 162],
SCC p. 644, paras 13-14)
'13. The aforesaid principle clearly lays down that even
after an application has been filed under the provisions
of the Act, the Magistrate under the Act has the power
to grant maintenance in favour of a divorced Muslim
woman and the parameters and the considerations
are the same as stipulated in Section 125 of the Code.
We may note that while taking note of the factual
score to the effect that the plea of divorce was not
accepted by the Magistrate which was upheld by the
High Court, the Constitution Bench [(2001) 7 SCC
740 : (2007) 3 SCC (Cri) 266] opined that as the
Magistrate could exercise power under Section 125
of the Code for grant of maintenance in favour of a
divorced Muslim woman under the Act, the order did
not warrant any interference. Thus, the emphasis was
laid on the retention of the power by the Magistrate
under Section 125 of the Code and the effect of
ultimate consequence.
14. Slightly recently, in Shabana Bano v. Imran Khan
[(2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010)
1 SCC (Cri) 873], a two-Judge Bench, placing reliance
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on Danial Latifi [(2001) 7 SCC 740 : (2007) 3 SCC
(Cri) 266], has ruled that : (Shabana Bano case
[(2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010)
1 SCC (Cri) 873], SCC p. 672, para 21)
'21. The appellant’s petition under Section 125 CrPC
would be maintainable before the Family Court
as long as the appellant does not remarry. The
amount of maintenance to be awarded under
Section 125 CrPC cannot be restricted for the
iddat period only.’
Though the aforesaid decision was rendered
interpreting Section 7 of the Family Courts Act, 1984,
yet the principle stated therein would be applicable,
for the same is in consonance with the principle stated
by the Constitution Bench in Khatoon Nisa [Khatoon
Nisa v. State of U.P. (2014) 12 SCC 646 : (2014) 5
SCC (Civ) 155 : (2014) 5 SCC (Cri) 170].’
In view of the aforesaid dictum, there can be no shadow
of doubt that Section 125 CrPC has been rightly held to
be applicable by the learned Family Judge.”
22. Before perusing the submissions made by the Counsel, it is paramount
to also consider the bare text of the concerned provisions vis-à-vis
their comparative dissection. Under Section 3 of the 1986 Act, the
entitlements or rights of a divorced Muslim woman, wider than the
ambit of maintenance, arise as against the obligations of her former
husband emanating from their divorce. Per contra, under Section 125
of CrPC 1973, a woman seeking maintenance has to establish that
she is unable to maintain herself. The right to seek maintenance under
Section 125 of CrPC 1973 is invokable even during the sustenance
of marriage and, thereby is not contingent upon divorce.
23. Another distinction vis-à-vis the aforementioned provisions, relates to
the time period within which proceedings initiated thereunder are to
be decided. While a petition moved under Section 3(2) of the 1986
Act is to be decided in regard to a husband’s liability under Section
3(1) of the 1986 Act within a period of one month, there is no such
statutory time frame prescribed under Section 125 of CrPC 1973.
However, there is an obligation to determine the interim maintenance
within a period of 60 days while dealing with a petition under Section
[2024] 7 S.C.R. 1265
Mohd. Abdul Samad v. The State of Telangana & Anr.
125 of CrPC 1973. Moreover, failure to comply with such order
passed under Section 3(2) of the 1986 Act may lead to issuance of
a warrant for levying the amount of maintenance as directed under
the said order and may also sentence him to imprisonment till the
payment is made or for a term which may extend to one year. On
the other hand, equivalent non-compliance of an order passed under
Section 125 of CrPC 1973 may result in imprisonment for a term of
one month or until the payment is made.
24. After the advent of the decision in Danial Latifi (supra), numerous
High Courts also went on to contemplate and analyse the instant
question of law. A quick examination of the said judgment by various
High Courts allows us to categorise the decisions rendered therein
into two sets of views. The first view in certain judgments so rendered
held that the remedy is to be exclusively exercised under Section 3
of the 1986 Act, impliedly holding that the rights under the secular
provisions stood extinguished. Another view in certain other judgments
allowed a divorced Muslim woman to seek the remedy of maintenance
under Section 125 of CrPC 1973 while explicit existence of Section
3 of the 1986 Act was recognised.
25. The set of judgments, that went on to hold that the rights of a divorced
Muslim woman are to be exercised through the provisions of the 1986
Act and specifically under Section 3 therein, and, not through the
secular provision of Section 125 of CrPC 1973. One decision by a
Single Judge of the High Court of Allahabad in Shahid Jamal Ansari
v. State of Uttar Pradesh 2008 SCC OnLine All 1077 is brought
to our attention by the learned amicus curiae whereby the Court
opined that a divorced Muslim woman cannot claim maintenance
from her former husband by virtue of secular provision of Section
125 of CrPC 1973 and the 1986 Act, being a complete code in itself
on the subject matter of maintenance, prevails.
26. Deviating from the aforesaid approach, certain High Courts adopted
a beneficial interpretation, that is to say, that the non-obstante clause
in the 1986 Act, in no manner bars the remedy under Section 125
CrPC 1973. In this regard, a reference has been made to a decision
of Single Judge of High Court of Gujarat in Mumtazben Jusabbhai
Sipahi v. Mahebubkhan Usmankhan Pathan 1998 SCC OnLine
Guj 279, a decision of High Court of Kerala in Kunhimohammed v.
Ayishakutty 2010 SCC OnLine Ker 567, the decisions of High Court
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of Allahabad in Mrs. Humera Khatoon and Others v. Mohd. Yaqoob
2010 SCC OnLine All 202, Sazid v. State of Uttar Pradesh and
Others 2011 SC OnLine All 1059, Jubair Ahmad v. Ishrat Bano
2019 SCC OnLine All 4065, and Shakila Khatun v. State of Uttar
Pradesh and Another 2023 SCC OnLine All 75, and the decision
of a Single Judge of High Court of Bombay in Khalil Abbas Fakir v.
Tabbasum Khalil Fakir and Another 2024 SCC OnLine Bom 23.
27. Amongst these set of decisions, the one rendered by a Division
Bench of the High Court of Kerala in Kunhimohammed (supra)
has significantly occupied the field in regard to the limited question
of law before us. A perusal of the instant judgment showcases the
same to be in line with the ratio decidendi rendered by this Court
in the decision in Danial Latifi (supra) by holding that there is no
express extinguishment of the rights under Section 125 CrPC 1973
and neither the same was intended or conceived by the legislature
while enacting the 1986 Act. It was observed that the domains
occupied by the two provisions are entirely different as the secular
provision stipulates an inability to maintain oneself for invoking the
said rights while Section 3 of the 1986 Act stands independent of
one’s ability or inability to maintain. Thereby, adopting a harmonious
and purposive approach amidst the two alleged conflicting legislative
protections.
28. In consideration of the aforesaid well-established positions of law,
as well as the submissions of the learned Senior Advocate and the
learned amicus curiae, it is apposite to accordingly decide the fate
of the instant petition moved before us.
To begin with the contention in regard to the existence of non-obstante
clause in Sections 3 and 4 of the 1986 Act, it is undoubtedly clarified
by the Constitution Benches of this Court that the same cannot
promptly be deemed to override any other rights so provided by the
enactments of the legislature. We are, accordingly, also bound by
the Doctrine of stare decisis contemplated through Article 141 of the
Constitution of India to accept the said observations. Furthermore,
a bare perusal of Section 7 of the 1986 Act, reflects the same to be
transitionary in nature and the interpretations in respect of Section 5
of the 1986 Act, as highlighted above through numerous decisions,
reflect our inability to accept the passionate contentions of the learned
Senior Advocate on behalf of the Appellant.
[2024] 7 S.C.R. 1267
Mohd. Abdul Samad v. The State of Telangana & Anr.
29. Thus, the High Court of Telangana, while modifying the Order(s)
of the Family Court, was correct in upholding the maintainability of
the petition filed under Section 125 of CrPC 1973 by Respondent
No. 02 herein. Therefore, there is no infirmity in its Impugned Order
dated 13.12.2023.
30. In addition, Mr Agrawal proceeded to put forth a question before
us that whether fulfilment of a divorced Muslim woman’s rights,
particularly maintenance under Section 3 of the 1986 Act, accepted by
her without demur, would bar her to file an application under Section
125 of CrPC 1973 in light of statutory protection ameliorating the
issue of double payment by a husband under secular, and personal
laws, as provided under Section 127(3)(b) of CrPC 1973.
31. Before proceeding with this additional question of law, it is apposite
to refer the bare provision of Section 127(3)(b) of CrPC 1973. The
same is accordingly reproduced hereinbelow:
“127. Alteration in allowance –
(3) Where any order has been made under section 125
in favour of a woman who has been divorced by, or has
obtained a divorce from her husband, the Magistrate shall,
if he is satisfied that –
(a) xxx-xxx-xxx
(b) the woman has been divorced by her husband
and that she has received, whether before or
after the date of the said order, the whole of the
sum which, under any customary or personal
law applicable to the parties, was payable on
such divorce, cancel such order –
(i) in the case where such sum was paid
before such order, from the date on which
such order was made;
(ii) in any other case, from the date of expiry
of the period, if any, for which maintenance
has been actually paid by the husband to
the woman;”
32. Unequivocally, the most appropriate construction of these secular
provisions of CrPC 1973 in regard to the right of maintenance is that
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the legislature would never intend that an undue benefit is derived
after the end of the marital relationship between the parties concerned.
Hence, the provision of Section 127(3)(b) of CrPC 1973 would act
in the nature of a proviso to the right provided under Section 125
of CrPC 1973 only in such a circumstance where sufficient means
of livelihood after the divorce, and the provisions contemplating the
future needs of divorced Muslim women, stands provided to the
satisfaction of the court concerned. To affirm, reliance is placed
on paragraph numbers 28 and 29 of the decision in Danial Latifi
(supra), which are reproduced below:
“28. A careful reading of the provisions of the Act would
indicate that a divorced woman is entitled to a reasonable
and fair provision for maintenance. It was stated that
Parliament seems to intend that the divorced woman
gets sufficient means of livelihood after the divorce and,
therefore, the word “provision” indicates that something
is provided in advance for meeting some needs. In other
words, at the time of divorce the Muslim husband is required
to contemplate the future needs and make preparatory
arrangements in advance for meeting those needs.
Reasonable and fair provision may include provision for
her residence, her food, her clothes, and other articles.
The expression “within” should be read as “during” or
“for” and this cannot be done because words cannot be
construed contrary to their meaning as the word “within”
would mean “on or before”, “not beyond” and, therefore,
it was held that the Act would mean that on or before
the expiration of the iddat period, the husband is bound
to make and pay maintenance to the wife and if he fails
to do so then the wife is entitled to recover it by filing an
application before the Magistrate as provided in Section
3(3) but nowhere has Parliament provided that reasonable
and fair provision and maintenance is limited only for the
iddat period and not beyond it. It would extend to the
whole life of the divorced wife unless she gets married
for a second time
29. The important section in the Act is Section 3 which
provides that a divorced woman is entitled to obtain from
[2024] 7 S.C.R. 1269
Mohd. Abdul Samad v. The State of Telangana & Anr.
her former husband “maintenance”, “provision” and “mahr”,
and to recover from his possession her wedding presents
and dowry and authorizes the Magistrate to order payment
or restoration of these sums or properties. The crux of
the matter is that the divorced woman shall be entitled to
a reasonable and fair provision and maintenance to be
made and paid to her within the iddat period by her former
husband. The wordings of Section 3 of the Act appear to
indicate that the husband has two separate and distinct
obligations : (1) to make a “reasonable and fair provision”
for his divorced wife; and (2) to provide “maintenance”
for her. The emphasis of this section is not on the nature
or duration of any such “provision” or “maintenance”, but
on the time by which an arrangement for payment of
provision and maintenance should be concluded, namely,
“within the iddat period”. If the provisions are so read,
the Act would exclude from liability for post-iddat period
maintenance to a man who has already discharged his
obligations of both “reasonable and fair provision” and
“maintenance” by paying these amounts in a lump sum
to his wife, in addition to having paid his wife’s mahr and
restored her dowry as per Sections 3(1)(c) and 3(1)(d) of
the Act. Precisely, the point that arose for consideration
in Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri)
245] was that the husband had not made a “reasonable
and fair provision” for his divorced wife even if he had
paid the amount agreed as mahr half a century earlier and
provided iddat maintenance and he was, therefore, ordered
to pay a specified sum monthly to her under Section 125
CrPC. This position was available to Parliament on the
date it enacted the law but even so, the provisions enacted
under the Act are “a reasonable and fair provision and
maintenance to be made and paid” as provided under
Section 3(1)(a) of the Act and these expressions cover
different things, firstly, by the use of two different verbs
— “to be made and paid to her within the iddat period”
it is clear that a fair and reasonable provision is to be
made while maintenance is to be paid; secondly, Section
4 of the Act, which empowers the Magistrate to issue an
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order for payment of maintenance to the divorced woman
against various of her relatives, contains no reference
to “provision”. Obviously, the right to have “a fair and
reasonable provision” in her favour is a right enforceable
only against the woman’s former husband, and in addition
to what he is obliged to pay as “maintenance”; thirdly, the
words of The Holy Quran, as translated by Yusuf Ali of
“mata” as “maintenance” though may be incorrect and
that other translations employed the word “provision”,
this Court in Shah Bano case [(1985) 2 SCC 556 : 1985
SCC (Cri) 245] dismissed this aspect by holding that it is
a distinction without a difference. Indeed, whether “mata”
was rendered “maintenance” or “provision”, there could be
no pretence that the husband in Shah Bano case [(1985)
2 SCC 556 : 1985 SCC (Cri) 245] had provided anything
at all by way of “mata” to his divorced wife. The contention
put forth on behalf of the other side is that a divorced
Muslim woman who is entitled to “mata” is only a single
or onetime transaction which does not mean payment of
maintenance continuously at all. This contention, apart
from supporting the view that the word “provision” in
Section 3(1)(a) of the Act incorporates “mata” as a right of
the divorced Muslim woman distinct from and in addition to
mahr and maintenance for the iddat period, also enables
“a reasonable and fair provision” and “a reasonable and
fair provision” as provided under Section 3(3) of the Act
would be with reference to the needs of the divorced
woman, the means of the husband, and the standard of
life the woman enjoyed during the marriage and there is
no reason why such provision could not take the form of
the regular payment of alimony to the divorced woman,
though it may look ironical that the enactment intended to
reverse the decision in Shah Bano case [(1985) 2 SCC
556 : 1985 SCC (Cri) 245], actually codifies the very
rationale contained therein.”
From the aforementioned paragraphs, this Court has clarified
the intent of the Parliament by giving beneficial construction to
the expressions contemplated under Section 3 of the 1986 Act,
particularly, “within iddat period” by observing that the Parliament
[2024] 7 S.C.R. 1271
Mohd. Abdul Samad v. The State of Telangana & Anr.
never sought to restrict the rights of a divorced Muslim woman to
iddat period. Rather, by virtue of the introduction of Section 3 of the
1986 Act in this socio-beneficial legislation, the idea was to confer the
benefit of maintenance as well as a reasonable and fair provision for
the lifetime of a divorced Muslim woman, subject to her remarriage.
Adding to this well-expounded interpretation of the provisions of the
1986 Act, it is hereby pertinent to highlight that a divorced Muslim
woman is not restricted from exercising her independent right of
maintenance under the secular provision of Section 125 of CrPC
1973, provided she is able to prove the requisites encompassed
by the said statute.
33. Having said that, it is also not to be a case where a specious amount
rendered in favour of a divorced woman by virtue of requirements laid
down in either the personal law or the customary law of the parties
is utilised to evade the liability under Section 125 of CrPC 1973 or
to seek an equivalent reduction in the amount of maintenance to
be provided therein. There ought to be a reasonable substitute for
the maintenance under personal or customary law equating to a
rational nexus between the actual sum of maintenance paid and the
potential of maintenance under the equivalent provision of secular
law. Having made the said observations, a reference should again
be made to the decision in Fuzlunbi (supra) in paragraph numbers
19(1) to 19(4) which declared that:
“19. We may sum up and declare the law foolproof fashion:
(1) Section 127(3)(b) has a setting, scheme and a
purpose and no talaq of the purpose different from
the sense is permissible in statutory construction.
(2) The payment of an amount, customary or other,
contemplated by the measure must inset the intent
of preventing destitution and providing a sum which
is more or less the present worth of the monthly
maintenance allowances the divorcee may need until
death or remarriage overtake her. The policy of the
law abhors neglected wives and destitute divorcees
and Section 127(3)(b) takes care to avoid double
payment one under custom at the time of divorce
and another under Section 125.
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(3) Whatever the facts of a particular case, the Code,
by enacting Sections 125 to 127, charges the court
with the humane obligation of enforcing maintenance
or its just equivalent to ill-used wives and castaway
ex-wives, only if the woman has received voluntarily
a sum, at the time of divorce, sufficient to keep her
going according to the circumstances of the parties.
(4) Neither personal law nor other salvationary plea
will hold against the policy of public law pervading
Section 127(3)(b) as much as it does in Section 125.
So a farthing is no substitute for a fortune nor naive
consent equivalent to intelligent acceptance…”
34. It is observed that there shall arise a couple of peculiar circumstances
while considering the right for seeking cancellation of an order by
the husband concerned, through an application under Section 127(3)
(b) of CrPC 1973. The first and settled circumstance is that, when
a divorced Muslim woman initially moves a petition under Section
125 of CrPC 1973 and seeks an order for maintenance as against
her former husband and only after receiving said entitlements, she
chooses to exercise her substantial rights as provided under Section
3 of the 1986 Act, and therein, the husband is also able to fulfil his
concerned obligations to the appropriate satisfaction of the court,
ensuring her future maintenance. It is then and only then that the
husband can invoke and press his claim under Section 127(3)(b)
of CrPC 1973 to seek cancellation of an order, if so, passed under
Section 125 of CrPC 1973, directing him to provide maintenance to
his former wife.
35. In a case where a husband has fulfilled his obligations under Section
3 of the 1986 Act or as provided by customary or personal law so
followed, and the divorced Muslim woman subsequently prefers
to invoke Section 125 of CrPC 1973 on the ground of inability to
maintain herself, in such a factual matrix, undeniably, the right to
move under this provision is open in favour of a divorced Muslim
woman. When a husband opposes resort to Section 125 CrPC 1973,
he has to establish that, (a) initial obligations under the customary
and/or personal statutory enactments as detailed earlier stands fulfilled
[2024] 7 S.C.R. 1273
Mohd. Abdul Samad v. The State of Telangana & Anr.
by him, and (b) that the wife, in the light of this, is able to maintain
herself. However, if the husband fails to sustain the said objection(s)
raised during the proceedings initiated under Section 125 of CrPC
1973, and an order is accordingly passed, it would not be inherently
barred or liable to be cancelled through an application under Section
127(3)(b) of CrPC 1973. Nevertheless, other appropriate remedies
as provided under the CrPC 1973 or any other law to that effect,
shall always be open to be exercised by such a husband to seek
setting aside or appropriate modification of an order so passed under
Section 125 of CrPC 1973.
36. Having said that, undoubtedly, if a “reasonable substitute” has been
provided for by the husband as per their personal or customary
laws at the time of their divorce, the maintenance provided for by
a Magistrate or a Family Court, as the case may be, under Section
125 of CrPC 1973, can be reduced to the extent of deemed double
benefit being given to a divorced wife.
37. From the aforementioned, 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. 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.
38. Accordingly, the decisions, as rendered by various High Courts, one
of which has been referred as aforesaid, or even otherwise, and
stand in contradistinction to the observations made hereinabove, do
not lay down the correct position of law, are, therefore, bad in law.
39. We note and acknowledge the able assistance rendered by the
learned amicus curiae which has immensely benefitted this Court
in settling the questions of law at hand.
40. The Impugned Order dated 13.12.2023 passed by the High Court
of Telangana is affirmed. Accordingly, the Appeal is dismissed in
the above terms.
41. Pending application(s), if any, also stand disposed of.
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Nagarathna J.
I have perused the judgment proposed by my learned brother
Augustine George Masih, J. and I agree with the same. Having
concurred with his opinion, I would like to record additional reasons
regarding the interpretation of Section 125 of the Code of Criminal
Procedure, 1973 (for short, “CrPC”) and Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 (for short, “1986
Act”).
Section 125 of the CrPC reads as under:
“Section 125. Order for maintenance of wives, children
and parents. – (1) If any person having sufficient means
neglects or refuses to maintain;
a) his wife, unable to maintain herself, or
b) his legitimate or illegitimate minor child, whether married
or not, unable to maintain itself, or
c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is,
by reason of any physical or mental abnormality or injury
unable to maintain itself, or
d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate as such magistrate
thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct;
Provided that the Magistrate may order the father of a minor
female child referred to in clause (b) to make such allowance,
until she attains her majority, if the Magistrate is satisfied that
the husband of such minor female child, if married, is not
possessed of sufficient means;
Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance
for the maintenance under this Sub-Section, order such
person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother,
[2024] 7 S.C.R. 1275
Mohd. Abdul Samad v. The State of Telangana & Anr.
and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person
as the Magistrate may from time to time direct;
Provided also that an application for the monthly allowance
for the interim maintenance and expenses of proceeding
under the second proviso shall, as far as possible, be
disposed of within sixty days from the date of the service
of notice of the application to such person.
Explanation. — For the purposes of this Chapter,- a)
“minor” means a person who, under the provisions of the
Indian Majority Act, 1875 (9 of 1875) is deemed not to
have attained his majority;
b) “wife” includes a woman who has been divorced by,
or has obtained a divorce from, her husband and has not
remarried.
(2) Any such allowance for the maintenance or interim
maintenance and expenses for proceeding shall be payable
from the date of the order, or, if so ordered, from the date
of the application for maintenance or interim maintenance
and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause
to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and
may sentence such person, for the whole, or any part
of each month’s allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the
case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery
of any amount due under this section unless application
be made to the Court to levy such amount within a period
of one year from the date on which it became due:
Provided further that if such person offers to maintain his
wife on condition of her living with him, and she refuses to
live with him, such Magistrate may consider any grounds
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of refusal stated by her, and may make an order under
this section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.— If a husband has contracted marriage with
another women or keeps a mistress, it shall be considered
to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the
maintenance or the interim maintenance and expenses of
proceeding, as the case may be, from her husband under
this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her, husband, or
if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in adultery,
or that without sufficient reason she refuses to live with
her husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.”
2. A reading of the aforesaid provision would indicate that in respect of
four categories of persons of a family unable to maintain themselves,
namely, wife, minor child, father and mother, if a person neglects
or refuses to maintain them despite having sufficient means then a
Magistrate of the first class (now, the family court in certain States)
upon proof of such neglect or refusal may order such person to make
a monthly allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate, as such Magistrate thinks fit,
and the person has to pay the same as directed.
3. Since the present case revolves around the expression “a wife who
is unable to maintain herself”, it is relevant to dwell further on the
definition of a wife under Section 125 of the CrPC. Explanation (b)
thereto defines a wife to include a woman who has been divorced by,
or has obtained a divorce from, her husband and has not remarried.
The definition being inclusive is therefore expansive in nature. A
divorced woman who has not remarried as well as a wife are placed
on par for the purpose of seeking maintenance.
4. The States of Madhya Pradesh, Maharashtra, Rajasthan, Tripura,
Uttar Pradesh and West Bengal have made State Amendments to
Section 125 of the CrPC.
[2024] 7 S.C.R. 1277
Mohd. Abdul Samad v. The State of Telangana & Anr.
Right to maintenance in a constitutional context:
5. Section 125 of the CrPC is a measure of social justice with a view
to protect women and children and is aligned to the salutary object
enshrined in Article 15(1) and (3) of the Constitution read with Article
39(e) of the Constitution. For immediate reference, Article 15(1) and
(3) and Article 39(e) are reproduced as under:
“15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.—(1) The
State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of
them.
xxx xxx xxx
(3) Nothing in this article shall prevent the State from
making any special provision for women and children.
xxx xxx xxx
39. Certain principles of policy to be followed by the
State.—The State shall, in particular, direct its policy
towards securing—
xxx xxx xxx
(e) that the health and strength of workers, men and
women, and the tender age of children are not abused
and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength;”
6. Article 15(3) is a fundamental right while Article 39 is a Directive
Principle of State Policy that is fundamental in the governance of
the country and it is the duty of the State to apply these principles
while making the law. Thus, the statutory right to seek maintenance
under Section 125 of the CrPC is also embedded in the text,
structure and philosophy of the Constitution. Article 15(3), read with
Article 39(e) manifests a constitutional commitment towards special
measures to ensure a life of dignity for women at all stages of their
lives. This ought to be irrespective of the faith a woman belongs
to. The remedy of maintenance is a critical source of succour for
the destitute, the deserted and the deprived sections of women.
There can be no manner of doubt that it is an instantiation of the
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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.
7. Further, Section 125 of the CrPC is independent of and in addition to
maintenance that could be awarded under the Protection of Women
from Domestic Violence Act, 2005 (for short, “2005 Act”) which is
applicable to an ‘aggrieved woman’ in a ‘shared household’ as defined
under the provisions of the aforesaid Act.
8. A reading of Section 125 of the CrPC would indicate that the intention
of the said provision is to provide for a speedy remedy and prevent
vagrancy by compelling the husband to support the wife. The
provision is meant to achieve a social purpose. The reason being,
that after marriage, it is the duty of the husband to provide shelter
and maintenance to the wife in the Indian context. Particularly, if
she is unable to maintain herself. If he neglects or refuses to do
so, the wife is legally entitled to enforce the said right by filing a
petition under Section 125 of the CrPC irrespective of any other
right created in favour of the wife under any other law. Therefore,
the passing of the 1986 Act, in my view, cannot militate against or
dilute the salutary nature of Section 125 of the CrPC. The object
of this provision is to save a wife including a divorced woman from
deprivation and destitution.
9. The salutary parliamentary intent behind Section 488 of the erstwhile
CrPC was exposited by Subba Rao, J., (as the learned Chief Justice
of India then was) in Jagir Kaur vs. Jaswant Singh (1964) 2 SCR
73. It was held that “Chapter 36 of the Code of Criminal Procedure
providing for maintenance of wives and children intends to serve a
social purpose.” After the enactment of the CrPC, 1973, this Court
in Bhagwan Dutt vs. Kamla Devi (1975) 2 SCC 386, held that
in order to subserve the object of Section 125(1) of the CrPC the
Magistrate must determine the wife’s requirements in such a manner
that prevents vagrancy and destitution. While assuring the aggrieved
woman a standard of living that is ‘neither luxurious nor penurious,’
this Court held that her separate income must also be accounted for
while computing the amount of maintenance. Therefore, the object
of maintenance proceedings is rehabilitative and not punitive as it
seeks to efficaciously provide a deserted wife with food, clothing and
shelter - the very basic essentials or needs of a human life.
[2024] 7 S.C.R. 1279
Mohd. Abdul Samad v. The State of Telangana & Anr.
10. The direction to provide maintenance seeks to alleviate the financial
stress and vulnerability of the impecunious woman who is dependent
on her husband economically. It is indeed a constitutional imperative
to redress the vulnerability of a married woman which includes a
divorced woman who does not have an independent source of
income under Section 125 of the CrPC. It is commonplace that
married women sacrifice employment opportunities to nurture the
family, pursue child rearing, and undertake care work for the elderly,
vide Jasbir Kaur Sehgal vs. District Judge, Dehradun (1997) 7
SCC 7. A neglected dependent wife, which also includes a divorced
woman who has no other source of income, has to perforce take
recourse to borrowings from her parents/relatives/others during the
interregnum to sustain herself and the minor children, till she receives
interim maintenance. This makes her obligated in so many ways
which may be taken advantage of by her parental (or natal) family
or others from whom she may have borrowed.
11. It is in this delicate context that the law of maintenance strikes a
careful, just and fair balance between the husband’s sacrosanct
duty towards his wife and children and the social imperative of not
imposing oppressive or punitive financial hardship on the husband,
vide Bhuwan Mohan Singh vs. Meena (2015) 6 SCC 353; Reema
Salkan vs. Sumer Singh Salkan (2019) 12 SCC 303.
Adequacy and sufficiency of maintenance:
12. One of the critical aspects of adjudicating claims for maintenance is
ensuring adequate and sufficiency of maintenance so that the wife
can maintain herself with dignity. The consistent emphasis of this
Court’s jurisprudence upon sufficiency of maintenance amount and
social protection of deserted women transcends the intricacies of
our pluralist legal culture and personal laws.
13. I may also note the Kerala High Court’s Division Bench judgment
in Kunhi Moyin vs. Pathumma, 1976 KLT 87 (“Kunhi Moyin”)
authored by Khalid, J. (as his Lordship then was). While dismissing
a Muslim husband’s constitutional challenge to Section 125 of the
CrPC, the High Court held that the salutary provision was enacted to
achieve the ends of social welfare and reform. Therefore, no claim
of violation of the fundamental right to practice religion under Article
25 could be sustained. Of particular relevance was the interpretation
of Section 127(3)(b) of the CrPC. The High Court found that an
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attempt may be made to rely upon Section 127(3)(b) to ‘destroy the
effectiveness of Section 125’ and deny its benefit to rightful claimants.
For the sake of clarity, the said provision is extracted as under:
“127. Alteration in allowance.- (1) On proof of a change
in the circumstances of any person, receiving under
section 125 a monthly allowance, for the maintenance or
interim maintenance, or ordered under the same section
to pay a monthly allowance for the maintenance, or interim
maintenance, to his wife, child, father or mother, as the
case may be, the Magistrate may make such alteration,
as he thinks fit, in the allowance for the maintenance or
the interim maintenance, as the case may be.
(2) Where it appears to the Magistrate that, in
consequence of any decision of a competent Civil
Court, any order made under section 125 should be
cancelled or varied, he shall cancel the order or, as
the case may be, vary the same accordingly.
(3) Where any order has been made under section 125
in favour of a woman who has been divorced by,
or has obtained a divorce from, her husband, the
Magistrate shall, if he is satisfied that –
(a) the woman has, after the date of such divorce,
remarried, cancel such order as from the date
of her remarriage;
(b) the woman has been divorced by her husband
and that she has received, whether before or
after the date of the said order, the whole of the
sum which, under any customary or personal
law applicable to the parties, was payable on
such divorce, cancel such order –
(i) in the case where such sum was paid
before such order, from the date on which
such order was made;
(ii) in any other case, from the date of expiry
of the period, if any, for which maintenance
has been actually paid by the husband to
the woman;
[2024] 7 S.C.R. 1281
Mohd. Abdul Samad v. The State of Telangana & Anr.
(c) the woman has obtained a divorce from
her husband and that she had voluntarily
surrendered her rights to maintenance or interim
maintenance, as the case may be after her
divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of
any maintenance or dowry by any person, to whom
a monthly allowance for the maintenance and interim
maintenance or any of them has been ordered to be
paid under Section 125, the Civil Court shall take
into account that sum which has been paid to, or
recovered by, such person as monthly allowance
for the maintenance and interim maintenance or
any of them, as the case may be, in pursuance of
the said order.”
The learned judge clarified that Section 127(3)(b) does not refer to
mahr or dower or the maintenance paid during the iddat period as
these are not the sums ‘payable on divorce’ under the personal law.
What was encompassed by the terms was the amount of alimony or
compensation paid upon dissolution of marriage under customary
or personal law. Expositing the intent and scheme of Section 125
read with Section 127, it was held that the Parliament did not intend
to take away by one hand what is given under Section 125 by the
other hand.
14. Krishna Iyer, J.’s judgment in Bai Tahira vs. Ali Hussain Fidaalli
Chothia (1979) 2 SCC 316 is also instructive in this respect. This
Court was confronted with the application of Section 125 of the CrPC
by a Muslim woman who had been divorced through a consent decree.
The husband had challenged the award of maintenance before the
Sessions Judge on the ground that the Magistrate lacked jurisdiction
to ascertain whether the petitioner-wife was a ‘wife’ within the meaning
of Section 125. Since the High Court had not interfered with the view
of the Sessions Judge, the Supreme Court granted leave and held that
a destitute divorcee would be covered within the protection of Section
125 since she was suffering neglect. Krishna Iyer, J. emphasised the
constitutional import of Section 125 in the following words:
“7. The meaning of meanings is derived from values in
a given society and its legal system. Article 15(3) has
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compelling, compassionate relevance in the context
of Section 125 and the benefit of doubt, if any, in
statutory interpretation belongs to the ill-used wife and
the derelict divorcee. This social perspective granted,
the resolution of all the disputes projected is easy. Surely,
Parliament, in keeping with Article 15(3) and deliberate
by design, made a special provision to help women in
distress cast away by divorce. Protection against moral
and material abandonment manifest in Article 39 is part
of social and economic justice, specificated in Article 38,
fulfilment of which is fundamental to the governance of the
country (Article 37). From this coign of vantage we must
view the printed text of the particular Code.”
(emphasis supplied)
15. The critical facet of the case was its interpretation of Section 127
of the CrPC. It was held that Section 127 did not totally exempt a
husband from providing maintenance to a destitute ex-wife if the
amount he paid to her under the personal law was not sufficient to
support her. It was held that:
“12. The payment of illusory amounts by way of customary
or personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that
rate unless it is a reasonable substitute. The legal sanctity
of the payment is certified by the fulfilment of the social
obligation, not by a ritual exercise rooted in custom. No
construction which leads to frustration of the statutory
project can secure validation if the court is to pay true
homage to the Constitution. The only just construction of
the section is that Parliament intended divorcees should
not derive a double benefit. If the first payment by way of
mehar or ordained by custom has a reasonable relation
to the object and is a capitalised substitute for the order
under Section 125 — not mathematically but fairly —
then Section 127(3)(b) subserves the goal and relieves
the obliger, not pro tanto but wholly. The purpose of the
payment “under any customary or personal law” must be
to obviate destitution of the divorcee and to provide her
with wherewithal to maintain herself. The whole scheme of
Section 127(3)(b) is manifestly to recognise the substitute
[2024] 7 S.C.R. 1283
Mohd. Abdul Samad v. The State of Telangana & Anr.
maintenance arrangement by lump sum payment organised
by the custom of the community or the personal law of the
parties. There must be a rational relation between the sum
so paid and its potential as provision for maintenance to
interpret otherwise is to stultify the project. Law is dynamic
and its meaning cannot be pedantic but purposeful. The
proposition, therefore, is that no husband can claim under
Section 127(3)(b) absolution from his obligation under
Section 125 towards a divorced wife except on proof of
payment of a sum stipulated by customary or personal
law whose quantum is more or less sufficient to do duty
for maintenance allowance.”
16. This carefully balanced and gender-just interpretation further guided
our jurisprudence in Fuzlunbi vs. K. Khader Vali (1980) 4 SCC
125 and Mohd. Ahmed Khan vs. Shah Bano Begum (1985) 2
SCC 556 (“Shah Bano”) insofar as the application of Section 125
to persons governed by Muslim Personal Law was concerned. In
Shah Bano, this Court held that Section 125 overrides personal law
of Muslims and hence a divorced Muslim woman is a “wife” within
the meaning of this provision. The crux of these judgments is that
an order under Section 127 ought to be a reasoned order and shall
only allow an order for maintenance to be cancelled if a judge was
satisfied that the divorced woman had received a sufficient amount
of maintenance under any customary or personal law.
In Danial Latifi vs. Union of India (2001) 7 SCC 740 (“Danial
Latifi”), this Court has recorded that there was a big uproar after the
judgment in Shah Bano was pronounced and Parliament enacted
the 1986 Act “perhaps, with an intention of making the decision in
Shah Bano ineffective.”
Interpretation of 1986 Act:
17. The Parliament rejected legislative proposals to totally exempt
Muslims from Section 125 of the CrPC and after extensive discussion,
the Parliament enacted the 1986 Act. The preamble of the 1986 Act
reads as under:
“An Act to protect the rights of Muslim women who have
been divorced by, or have obtained divorce from, their
husbands and to provide for matters connected therewith
or incidental thereto.”
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18. The Statement of Objects and Reasons of the 1986 Act manifests
the Parliament’s intent to clarify the controversy emerging from the
judgment in Shah Bano regarding the obligation of the Muslim
husband to pay maintenance to a divorced wife. It underlines that
the Parliament was taking the opportunity to ‘specify the rights’ of
a Muslim divorced woman so as to protect her interests. The Bill of
the said Act specified rights vis à vis a Muslim divorced woman who
shall be entitled to the following:
i. Reasonable and fair provision and maintenance for the woman
within the period of iddat;
ii. Reasonable provisions and maintenance for the children born
to her before or after her divorce extended to a period of two
years from the dates of birth of the children;
iii. Mahr or dower and all the properties given to her by her relatives,
friends, husband or the husband’s relatives, if the above benefits
are not given to her at the time of divorce.
In the eventuality that a Muslim divorced woman was unable to
maintain herself after the iddat period, it was specified that she shall
be entitled to:
i. Maintenance by her relatives who would be entitled to inherit her
property on her death according to Muslim law in the proportions
in which they would inherit her property.
ii. If any one of such relatives is unable to pay his or her share
on the ground of his or her not having the means to pay, the
other relatives who have sufficient means shall pay the shares
of these relatives also.
iii. If a divorced woman has no relatives or if such relatives are
unable to provide maintenance then the State Wakf Board shall
pay maintenance ordered by the Magistrate.
19. Sections 3 and 4 of the 1986 Act which deal with the aforesaid
aspects are extracted hereunder:
“3. Mahr or other properties of Muslim woman to be
given to her at the time of divorce.—(1) Notwithstanding
anything contained in any other law for the time being in
force, a divorced woman shall be entitled to—
[2024] 7 S.C.R. 1285
Mohd. Abdul Samad v. The State of Telangana & Anr.
(a) a reasonable and fair provision and maintenance to
be made and paid to her within the iddat period by
her former husband;
(b) where she herself maintains the children born to her
before or after her divorce, a reasonable and fair
provision and maintenance to be made and paid by
her former husband for a period of two years from
the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed
to be paid to her at the time of her marriage or at any
time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time
of marriage or after her marriage by her relatives or
friends or the husband or any relatives of the husband
or his friends.
(2 ) Where a reasonable and fair provision and maintenance
or the amount of mahr or dower due has not been made
or paid or the properties referred to in clause (d ) of sub-
section (1 ) have not been delivered to a divorced woman
on her divorce, she or any one duly authorised by her may,
on her behalf, make an application to a Magistrate for an
order for payment of such provision and maintenance, mahr
or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section
(2 ) by a divorced woman, the Magistrate may, if he is
satisfied that—
(a) her husband having sufficient means, has failed or
neglected to make or pay her within the iddat period
a reasonable and fair provision and maintenance for
her and the children; or
(b) the amount equal to the sum of mahr or dower has not
been paid or that the properties referred to in clause
(d ) of sub-section (1 ) have not been delivered to her.
make an order, within one month of the date of the filing
of the application, directing her former husband to pay
such reasonable and fair provision and maintenance to the
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divorced woman as he may determine as fit and proper
having regard to the needs of the divorced woman, the
standard of life enjoyed by her during her marriage and
the means of her former husband or, as the case may be,
for the payment of such mahr or dower or the delivery of
such properties referred to in clause (d ) of sub-section
(1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to
dispose of the application within the said period, he may, for
reasons to be recorded by him, dispose of the application
after the said period.
(4) If any person against whom an order has been made
under sub-section (3 ) fails without sufficient cause to
comply with the order, the Magistrate may issue a warrant
for levying the amount of maintenance or mahr or dower
due in the manner provided for levying fines under the
Code of Criminal Procedure, 1973 (2 of 1974), and may
sentence such person, for the whole or part of any amount
remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one year or
until payment if sooner made, subject to such person being
heard in defence and the said sentence being imposed
according to the provisions of the said Code.
4. Order for payment of maintenance.—(1)
Notwithstanding anything contained in the foregoing
provisions of this Act or in any other law for the time
being in force, where the Magistrate is satisfied that a
divorced woman has not re-married and is not able to
maintain herself after the iddat period, he may make an
order directing such of her relatives as would be entitled
to inherit her property on her death according to Muslim
law to pay such reasonable and fair maintenance to her
as he may determine fit and proper, having regard to the
needs of the divorced woman, the standard of life enjoyed
by her during her marriage and the means of such relatives
and such maintenance shall be payable by such relatives
in the proportions in which they would inherit her property
and at such periods as he may specify in his order:
[2024] 7 S.C.R. 1287
Mohd. Abdul Samad v. The State of Telangana & Anr.
Provided that where such divorced woman has children,
the Magistrate shall order only such children to pay
maintenance to her, and in the event of any such children
being unable to pay such maintenance, the Magistrate
shall order the parents of such divorced woman to pay
maintenance to her:
Provided further that if any of the parents is unable to
pay his or her share of the maintenance ordered by the
Magistrate on the ground of his or her not having the
means to pay the same, the Magistrate may, on proof of
such inability being furnished to him, order that the share
of such relatives in the maintenance ordered by him be
paid by such of the other relatives as may appear to the
Magistrate to have the means of paying the same in such
proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself
and she has no relatives as mentioned in sub-section (1) or
such relatives or any one of them have not enough means
to pay the maintenance ordered by the Magistrate or the
other relatives have not the means to pay the shares of
those relatives whose shares have been ordered by the
Magistrate to be paid by such other relatives under the
second proviso to sub-section (1), the Magistrate may,
by order direct the State Wakf Board established under
section 9 of the Wakf Act, 1954 (29 of 1954), or under any
other law for the time being in force in a State, functioning
in the area in which the woman resides, to pay such
maintenance as determined by him under sub-section (1)
or, as the case may be, to pay the shares of such of the
relatives who are unable to pay, at such periods as he
may specify in his order.”
In Danial Latifi, this Court observed on the effect and implication of
the 1986 Act on the judgment of this Court in Shah Bano as under:
“8. As held in Shah Bano case [(1985) 2 SCC 556 : 1985
SCC (Cri) 245] the true position is that if the divorced
wife is able to maintain herself, the husband’s liability to
provide maintenance for her ceases with the expiration of
the period of iddat but if she is unable to maintain herself
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after the period of iddat, she is entitled to have recourse
to Section 125 CrPC. Thus it is was held that there is no
conflict between the provisions of Section 125 CrPC and
those of the Muslim personal law on the question of the
Muslim husband’s obligation to provide maintenance to
his divorced wife, who is unable to maintain herself. This
view is a reiteration of what is stated in two other decisions
earlier rendered by this Court in Bai Tahira v. Ali Hussain
Fidaalli Chothia [(1979) 2 SCC 316 : 1979 SCC (Cri) 473]
and Fuzlunbi v. K. Khader Vali [(1980) 4 SCC 125 : 1980
SCC (Cri) 916] .
xxx xxx xxx
17. This Court in Shah Bano case [(1985) 2 SCC 556 :
1985 SCC (Cri) 245] held that although Muslim personal
law limits the husband’s liability to provide maintenance
for his divorced wife to the period of iddat, it does not
contemplate a situation envisaged by Section 125 CrPC
of 1973. The Court held that it would not be incorrect or
unjustified to extend the above principle of Muslim law
to cases in which a divorced wife is unable to maintain
herself and, therefore, the Court came to the conclusion
that if the divorced wife is able to maintain herself the
husband’s liability ceases with the expiration of the period
of iddat, but if she is unable to maintain herself after the
period of iddat, she is entitled to recourse to Section 125
CrPC. This decision having imposed obligations as to the
liability of the Muslim husband to pay maintenance to his
divorced wife, Parliament endorsed by the Act the right
of a Muslim woman to be paid maintenance at the time
of divorce and to protect her rights.”
20. This Court aptly summarised the position of a dependent married
woman and her desperation on divorce in para 20 the judgment in
Danial Latifi in the following words:
“20. In interpreting the provisions where matrimonial
relationship is involved, we have to consider the social
conditions prevalent in our society. In our society, whether
they belong to the majority or the minority group, what is
apparent is that there exists a great disparity in the matter
[2024] 7 S.C.R. 1289
Mohd. Abdul Samad v. The State of Telangana & Anr.
of economic resourcefulness between a man and a woman.
Our society is male dominated, both economically and
socially and women are assigned, invariably, a dependent
role, irrespective of the class of society to which she
belongs. A woman on her marriage very often, though highly
educated, gives up her all other avocations and entirely
devotes herself to the welfare of the family, in particular
she shares with her husband, her emotions, sentiments,
mind and body, and her investment in the marriage is
her entire life — a sacramental sacrifice of her individual
self and is far too enormous to be measured in terms of
money. When a relationship of this nature breaks up, in
what manner we could compensate her so far as emotional
fracture or loss of investment is concerned, there can be
no answer. It is a small solace to say that such a woman
should be compensated in terms of money towards her
livelihood and such a relief which partakes basic human
rights to secure gender and social justice is universally
recognised by persons belonging to all religions and it is
difficult to perceive that Muslim law intends to provide a
different kind of responsibility by passing on the same to
those unconnected with the matrimonial life such as the
heirs who were likely to inherit the property from her or the
Wakf Boards. Such an approach appears to us to be a kind
of distortion of the social facts. Solutions to such societal
problems of universal magnitude pertaining to horizons
of basic human rights, culture, dignity and decency of life
and dictates of necessity in the pursuit of social justice
should be invariably left to be decided on considerations
other than religion or religious faith or beliefs or national,
sectarian, racial or communal constraints. Bearing this
aspect in mind, we have to interpret the provisions of the
Act in question.”
21. The provisions of the 1986 Act came to be upheld by the Constitution
Bench of this Court in Danial Latifi. I may notice the clear conclusion
that the Constitution Bench arrived at as under:
“36. While upholding the validity of the Act, we may sum
up our conclusions:
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(1) A Muslim husband is liable to make reasonable and
fair provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the
iddat period must be made by the husband within the
iddat period in terms of Section 3(1)(a) of the Act.
(2) Liability of a Muslim husband to his divorced wife
arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to the iddat period.
(3) A divorced Muslim woman who has not remarried
and who is not able to maintain herself after the
iddat period can proceed as provided under Section
4 of the Act against her relatives who are liable to
maintain her in proportion to the properties which
they inherit on her death according to Muslim law
from such divorced woman including her children
and parents. If any of the relatives being unable
to pay maintenance, the Magistrate may direct the
State Wakf Board established under the Act to pay
such maintenance.
(4) The provisions of the Act do not offend Articles 14,
15 and 21 of the Constitution of India.”
22. This Court, while interpreting the 1986 Act, specifically repelled the
contention that the 1986 Act was enacted to undo the effect of Shah
Bano in the following words:
“26. A reading of the Act will indicate that it codifies and
regulates the obligations due to a Muslim woman divorcee
by putting them outside the scope of Section 125 CrPC
as the “divorced woman” has been defined as “Muslim
woman who was married according to Muslim law and
has been divorced by or has obtained divorce from her
husband in accordance with the Muslim law”. But the Act
does not apply to a Muslim woman whose marriage is
solemnised either under the Indian Special Marriage Act,
1954 or a Muslim woman whose marriage was dissolved
either under the Indian Divorce Act, 1869 or the Indian
Special Marriage Act, 1954. The Act does not apply to the
[2024] 7 S.C.R. 1291
Mohd. Abdul Samad v. The State of Telangana & Anr.
deserted and separated Muslim wives. The maintenance
under the Act is to be paid by the husband for the duration
of the iddat period and this obligation does not extend
beyond the period of iddat. Once the relationship with
the husband has come to an end with the expiry of the
iddat period, the responsibility devolves upon the relatives
of the divorcee. The Act follows Muslim personal law in
determining which relatives are responsible under which
circumstances. If there are no relatives, or no relatives are
able to support the divorcee, then the court can order the
State Wakf Boards to pay the maintenance.
xxx xxx xxx
28. A careful reading of the provisions of the Act would
indicate that a divorced woman is entitled to a reasonable
and fair provision for maintenance. It was stated that
Parliament seems to intend that the divorced woman
gets sufficient means of livelihood after the divorce and,
therefore, the word “provision” indicates that something
is provided in advance for meeting some needs. In other
words, at the time of divorce the Muslim husband is required
to contemplate the future needs and make preparatory
arrangements in advance for meeting those needs.
Reasonable and fair provision may include provision for
her residence, her food, her clothes, and other articles. The
expression “within” should be read as “during” or “for” and
this cannot be done because words cannot be construed
contrary to their meaning as the word “within” would mean
“on or before”, “not beyond” and, therefore, it was held
that the Act would mean that on or before the expiration
of the iddat period, the husband is bound to make and pay
maintenance to the wife and if he fails to do so then the
wife is entitled to recover it by filing an application before
the Magistrate as provided in Section 3(3) but nowhere has
Parliament provided that reasonable and fair provision and
maintenance is limited only for the iddat period and not
beyond it. It would extend to the whole life of the divorced
wife unless she gets married for a second time.
xxx xxx xxx
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30. A comparison of these provisions with Section 125 CrPC
will make it clear that requirements provided in Section
125 and the purpose, object and scope thereof being to
prevent vagrancy by compelling those who can do so to
support those who are unable to support themselves and
who have a normal and legitimate claim to support are
satisfied. If that is so, the argument of the petitioners that
a different scheme being provided under the Act which
is equally or more beneficial on the interpretation placed
by us from the one provided under the Code of Criminal
Procedure deprive them of their right, loses its significance.
The object and scope of Section 125 CrPC is to prevent
vagrancy by compelling those who are under an obligation
to support those who are unable to support themselves
and that object being fulfilled, we find it difficult to accept
the contention urged on behalf of the petitioners.”
(underlining by me)
Although the provisions of the 1986 Act have been upheld by this
Court, the controversy raised still remains inasmuch as the respondent
herein sought recourse to Section 125 of the CrPC despite the
1986 Act being applicable and the same being objected to by the
appellant herein on the premise that on the enforcement of the 1986
Act, Section 125 of the CrPC ceases to apply to a divorced Muslim
woman. I shall now analyse the relevant provisions of the 1986 Act.
23. Section 3(1) begins with a non-obstante clause as, “notwithstanding
anything contained in any other law for the time being in force,” a
divorced woman shall be entitled to reasonable and fair provision
and maintenance and other benefits in the manner stated therein.
The object and purpose of a non-obstante clause in a statute can be
discussed at this stage. A non-obstante clause is usually appended
to a Section in the beginning with a view to give the enacting part
of the Section, in case of a conflict, an overriding effect over the
provision or Act mentioned in the non-obstante clause. In other words,
in spite of the provision or the Act mentioned in the non-obstante
clause, the enactment following it will have its full operation or that
the provisions embraced in the non-obstante clause will not be an
impediment for the operation of the enactment. Thus, a non-obstante
clause is a legislative device used by a Parliament or legislature
[2024] 7 S.C.R. 1293
Mohd. Abdul Samad v. The State of Telangana & Anr.
sometimes to give an overriding effect to what has been specified
in the enacting part of a section in case of a conflict with what is
contained in the non-obstante clause as stated above. Further, a
non-obstante clause has to be distinguished from the expression
“subject to” where the latter would convey the idea of a provision
yielding place to another provision or other provisions to which it is
made subject to. Also, the expression “notwithstanding anything in
any other law ” in a Section of an Act has to be contrasted with the
use of the expression “notwithstanding anything contained in this Act ”,
which has to be construed to take away the effect of any provision
of that particular Act in which the section occurs but it cannot take
away the effect of any other law. [Source: Principles of Statutory
Interpretation by Justice G.P. Singh, 15th Edition, Chapter 5.4, p.284]
24. Recently, a seven-judge Bench of this Court in Curative Petition
(C) No.44 of 2023 in Review Petition (C) No.704 of 2021 arising
out of Civil Appeal No.1599 of 2020 (In Re : Interplay between
Arbitration Agreements under the Arbitration and Conciliation
Act, 1996 and the Indian Stamp Act, 1899) (2023) SCC OnLine
SC 1666, in paragraph 84 of the said judgment considered the
implication of a non-obstante clause in a provision with reference
to Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986)
4 SCC 447, wherein it was observed as under:
"84. xxx
“67. A clause beginning with the expression
“notwithstanding anything contained in this Act or
in some particular provision in the Act or in some
particular Act or in any law for the time being in force,
or in any contract” is more often than not appended
to a section in the beginning with a view to give the
enacting part of the section in case of conflict an
overriding effect over the provision of the act or the
contract mentioned in the non obstante clause. It is
equivalent to saying that in spite of the provisions of
the Act or any other Act mentioned in the non obstante
clause or any contract or document mentioned the
enactment following it will have its full operation or
that the provisions embraced in the non obstante
clause would not be an impediment for an operation
of the enactment.”
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It was further observed in reference to ICICI Bank Ltd. vs. SIDCO
Leathers Ltd. (2006) 10 SCC 452, that even if a non-obstante clause
has wide amplitude, the extent of its impact has to be measured in
view of the legislative intention and legislative policy.
25. Further, the utility of non-obstante clause is where there is a conflict
between what is stated in a provision and any other law for the time
being in force, or anything else contained in the said enactment. As
already noted, only in the case of a conflict, the object is to give the
enacting or operative portion of the section an overriding effect, not
otherwise. In other words, only in a case of a conflict, a provision in
an enactment containing a non-obstante clause, would be given its
full operation and what is stated in the non-obstante clause will not
be an impediment for the operation of the particular provision in the
enactment. This would mean that what is stated in the non-obstante
clause would not take away the effect of any provision of the Act
which follows the same.
26. In Aswini Kumar Ghosh vs. Arabinda Bose, AIR 1952 SC 369,
this Court speaking through Chief Justice Patanjali Shastri observed
that only when there is any inconsistency between what is contained
in a provision of an enactment and a non-obstante clause would
make the latter in what is to yield to what is stated in the provision
following the same. In other words, it is only when the enacting part
of the statute cannot be read harmoniously with what is stated in
the non-obstante clause, would the non-obstante clause result in
yielding to what is stated in the enacting part. Similarly, in Municipal
Corporation, Indore vs. Ratnaprabha, AIR 1977 SC 308, it was
observed that there should be a clear inconsistency between a
special enactment or rules and a general enactment.
27. Reference may also be made to an earlier judgment of the Full
Bench of the Bombay High Court in Karim Abdul Rehman Shaikh
vs. Shehnaz Karim Shaikh, 2000 SCC OnLine Bom 446. Ranjana
Desai, J, (as Her Ladyship then was) held that the purpose of the 1986
Act was not to take away a pre-existing right to seek maintenance
under the extant statutory regime. Its intent could not be to ‘absolve
Muslim husbands from their obligation to look after them after iddat
period.’ The upshot of the reasoning was that the 1986 Act deliberately
used two distinct expressions: maintenance and provision. These
expressions allow sufficient interpretive amplitude to reconcile the
[2024] 7 S.C.R. 1295
Mohd. Abdul Samad v. The State of Telangana & Anr.
Muslim personal law with the secular law of maintenance bearing
in mind the constitutional objective of preserving and promoting
the dignity of Muslim women. The expression ‘provision’ denotes
a forward-looking approach. It could not be circumscribed to the
period of iddat but any limit on the same had to have a nexus to the
vagrancy of the wife and the sufficiency of maintenance. Therefore,
Section 3(1)(a) entitles the divorced wife to an amount that would
be necessary in view of her essential expenses on residence, food,
clothing, medicine etc.
28. I find that the 1986 Act was upheld by this Court in Danial Latifi on
the basis of a purposive interpretation that mitigated the possibility
of the absurd consequence of denying access to justice to a
divorced Muslim woman. The premise of such an interpretation is
that the expression “divorced woman” is defined in Section 2(a) of
the said Act to mean a Muslim woman who has married according
to Muslim law and has been divorced by, or has obtained divorce
from, her husband in accordance with Muslim Law. A plain reading
of the aforesaid expression would also indicate that the right created
in favour of a Muslim divorced woman is in addition to and not in
derogation of any other law for the time being in force. This would
mean that Section 125 of the CrPC applies to such a Muslim woman
also and the definition of wife in Section 125 of the CrPC including a
divorced wife (irrespective of the faith she follows) would not detract
from such a divorced Muslim wife also claiming maintenance under
that provision. This is despite Section 3 creating new rights insofar
as such a divorced Muslim woman is concerned. The scope and
ambit of the non-obstante clause must be given its full effect and
force. In other words, the intent of the Parliament which can be
gathered from the use of such a non-obstante clause is to enhance
the right of a divorced Muslim woman in addition to what she would
have been entitled to under Section 125 of the CrPC. If the intent of
the Parliament was otherwise, i.e., to curtail the rights of a divorced
Muslim woman then the non-obstante clause would not have found
a place in sub-section (1) of Section 3 of the 1986 Act. This is
evident from the fact that while enacting the 1986 Act, Parliament
did not simultaneously or at anytime thereafter create any bar for a
divorced Muslim woman from claiming maintenance under Section
125 of the CrPC and thereby constrain her to proceed to make a
claim only under the provisions of the 1986 Act. Neither is there
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any bar, express or implied under the 1986 Act, to the effect that a
divorced Muslim woman cannot unilaterally seek maintenance under
Section 125 of the CrPC. One cannot read Section 3 of the 1986
Act containing the non-obstante clause so as to restrict or diminish
the right to maintenance of a divorced Muslim woman under Section
125 of the CrPC and neither is it a substitute for the latter. Such an
interpretation would be regressive, anti-divorced Muslim woman and
contrary to Articles 14 and 15(1) and (3) as well as Article 39(e) of
the Constitution of India. Therefore, inspite of an option of seeking
maintenance under the provisions of the 1986 Act, Section 125 of
the CrPC is applicable to a divorced Muslim woman.
29. Similarly, the expression “notwithstanding anything contained in the
foregoing provisions of this Act or any other law for the time being in
force” in sub-section (1) of Section 4, is indicative of the fact that the
Magistrate can order for maintenance of a divorced Muslim woman
being entitled to maintenance as per the provisions of the said Act.
Further, sub-section (1) of Section 4 takes into consideration the
period after the iddat period while sub-section (1) of Section 3 deals
with a period which is within the iddat period. This Section is akin
to Section 125 of the CrPC for a reasonable and fair provision of
maintenance to be made.
30. In my view, the rights created under the provisions of the 1986 Act
are in addition to and not in derogation of the right created under
Section 125 of the CrPC, and the same is the basis for this Court’s
conclusion in Danial Latifi to save the 1986 Act from the vice of
unconstitutionality. This is because nowhere in the judgment of this
Court in the aforesaid case is there a reference to any bar under the
provisions of the 1986 Act and neither has this Court created any
such bar in the aforesaid judgment for a divorced Muslim woman to
approach the Court under Section 125 of the CrPC for maintenance.
Thus, the non-obstante clause in Sub-section (1) of Section 3
cannot result in Sections 3 and 4 of the 1986 Act whittling down the
application of Section 125 of the CrPC and other allied provisions
of the CrPC to a divorced Muslim woman. Therefore, if a divorced
Muslim woman approaches the Magistrate for enforcement of her
rights under Section 125 of the CrPC, she cannot be turned away to
seek relief only under Sections 3 and 4 of the 1986 Act as is sought
to be contended by the appellant herein. In other words, such a
divorced Muslim woman is entitled to seek recourse to either or both
[2024] 7 S.C.R. 1297
Mohd. Abdul Samad v. The State of Telangana & Anr.
the provisions. The option lies with such a woman. The Court would
have to ultimately balance between the amount awarded under the
1986 Act and the one to be awarded under Section 125 of the CrPC.
31. In this context, I note that the learned senior counsel for the appellant,
Sri Qadri relied upon the language of Sections 5 and 7 of the 1986
Act to argue that the Parliament intended to give the 1986 Act an
overriding effect over the secular law on maintenance, i.e. Sections
125 to 128 of the CrPC. Sections 5 and 7 are reproduced for
immediate reference:
“5. Option to be governed by the provisions of sections
125 to 128 of Act 2 of 1974.- If, on the date of the first
hearing of the application under sub-section (2) of section
3, a divorced woman and her former husband declare, by
affidavit or any other declaration in writing in such form as
may be prescribed, either jointly or separately, that they
would prefer to be governed by the provisions of sections
125 to 128 of the Code of Criminal Procedure, 1973 (2
of 1974); and file such affidavit or declaration in the court
hearing the application, the Magistrate shall dispose of
such application accordingly.
Explanation.—For the purposes of this section, “date of
the first hearing of the application” means the date fixed
in the summons for the attendance of the respondent to
the application.
xxx xxx xxx
7. Transitional provisions.- Every application by a
divorced woman under section 125 or under section 127
of the Code of Criminal Procedure, 1973 (2 of 1974)
pending before a Magistrate on the commencement of
this Act, shall, notwithstanding anything contained in that
Code and subject to the provisions of section 5 of this Act,
be disposed of by such Magistrate in accordance with the
provisions of this Act.”
32. I find that Section 5 provides for a situation where a Muslim woman
and her former husband decide to voluntarily elect to pursue the
remedies under Sections 125 to 128 of the CrPC by way of a
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written application on the first date of hearing of an application
under Section 3 of the 1986 Act. The provision seeks to provide an
option that can be mutually exercised by the Muslim woman and
her former husband. The deliberate use of the words ‘option’ and
‘former husband’ demonstrates that Section 5 does not statutorily
confine the circumstances under which the claim of maintenance of
a divorced Muslim woman can be governed under the secular law
of maintenance. Similarly, Section 7, being a transitional provision,
only determines that every pending application under Section 125
of the CrPC for maintenance at the time of commencement of the
1986 Act would be disposed of in accordance with the provisions
of 1986 Act. The purpose of a transitional provision is to mitigate
uncertainty from the minds of the litigants who were faced with the
peculiar situation with respect to pending maintenance applications
and the possibility of fresh applications being filed under the 1986
Act as per the option of the parties. The use of the expression in
Section 7 of the 1986 Act ‘notwithstanding anything contained in
that Code,’ with respect to the CrPC does not indicate the intent
to abrogate the independent right of a Muslim woman, as a victim
of neglect or destitution, to claim maintenance from her husband.
Moreover, Section 7 is subject to Section 5 of the said Act. Also, a
transitional provision is of a temporary nature. On the strength of a
transitional provision the main Act i.e. 1986 Act cannot be interpreted
in a manner so as to restrict the rights of a divorced Muslim woman
to other available remedies such as under Section 125 of the CrPC.
33. This Court in Danial Latifi was alive to the hardship that would befall
Muslim women if the provisions of the 1986 Act were construed in
a manner that deprived them of the protection that was equal to
the protection afforded to non-Muslim women under Section 125
of the CrPC. It was reasoned that to make a Muslim woman run
from pillar to post in search of her relatives one after the other and
ultimately to knock at the doors of the Wakf Board could not be
reasonable and a fair substitute for the provisions of Section 125
of the CrPC. In this respect, the observations of this Court deserve
to be quoted in full:
“33. In Shah Bano case [(1985) 2 SCC 556 : 1985 SCC
(Cri) 245] this Court has clearly explained as to the
rationale behind Section 125 CrPC to make provision for
[2024] 7 S.C.R. 1299
Mohd. Abdul Samad v. The State of Telangana & Anr.
maintenance to be paid to a divorced Muslim wife and
this is clearly to avoid vagrancy or destitution on the part
of a Muslim woman. The contention put forth on behalf of
the Muslim organisations who are interveners before us
is that under the Act, vagrancy or destitution is sought to
be avoided but not by punishing the erring husband, if at
all, but by providing for maintenance through others. If for
any reason the interpretation placed by us on the language
of Sections 3(1)(a) and 4 of the Act is not acceptable, we
will have to examine the effect of the provisions as they
stand, that is, a Muslim woman will not be entitled to
maintenance from her husband after the period of iddat
once the talaq is pronounced and, if at all, thereafter
maintenance could only be recovered from the various
persons mentioned in Section 4 or from the Wakf Board.
This Court in Olga Tellis v. Bombay Municipal Corpn.
[(1985) 3 SCC 545] and Maneka Gandhi v. Union of India
[(1978) 1 SCC 248] held that the concept of “right to life
and personal liberty” guaranteed under Article 21 of the
Constitution would include the “right to live with dignity”.
Before the Act, a Muslim woman who was divorced by
her husband was granted a right to maintenance from her
husband under the provisions of Section 125 CrPC until
she may remarry and such a right, if deprived, would not
be reasonable, just and fair. Thus the provisions of the
Act depriving the divorced Muslim women of such a right
to maintenance from her husband and providing for her
maintenance to be paid by the former husband only for
the period of iddat and thereafter to make her run from
pillar to post in search of her relatives one after the other
and ultimately to knock at the doors of the Wakf Board
does not appear to be reasonable and fair substitute of the
provisions of Section 125 CrPC. Such deprivation of the
divorced Muslim women of their right to maintenance from
their former husbands under the beneficial provisions of the
Code of Criminal Procedure which are otherwise available
to all other women in India cannot be stated to have been
effected by a reasonable, right, just and fair law and, if these
provisions are less beneficial than the provisions of Chapter
IX of the Code of Criminal Procedure, a divorced Muslim
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woman has obviously been unreasonably discriminated and
got out of the protection of the provisions of the general
law as indicated under the Code which are available to
Hindu, Buddhist, Jain, Parsi or Christian women or women
belonging to any other community. The provisions prima
facie, therefore, appear to be violative of Article 14 of the
Constitution mandating equality and equal protection of law
to all persons otherwise similarly circumstanced and also
violative of Article 15 of the Constitution which prohibits
any discrimination on the ground of religion as the Act
would obviously apply to Muslim divorced women only
and solely on the ground of their belonging to the Muslim
religion. It is well settled that on a rule of construction, a
given statute will become “ultra vires” or “unconstitutional”
and, therefore, void, whereas on another construction
which is permissible, the statute remains effective and
operative the court will prefer the latter on the ground that
the legislature does not intend to enact unconstitutional
laws. We think, the latter interpretation should be accepted
and, therefore, the interpretation placed by us results in
upholding the validity of the Act. It is well settled that
when by appropriate reading of an enactment the validity
of the Act can be upheld, such interpretation is accepted
by courts and not the other way round.”
34. Therefore, it was held that the Muslim husband has two separate and
distinct obligations, viz., (i) to make a “reasonable and fair provision”
for his divorced wife and (ii) to provide “maintenance” for her. Contrary
to limiting the duration of any such “provision” and “maintenance”
to only the iddat period, the emphasis of Section 3(1)(a) specifically
and the 1986 Act generally is to mandate the time for concluding the
payment of provision and maintenance within the iddat period but not
only restricted for the said period. This Court applied its judgment in
Danial Latifi in Sabra Shamim vs. Maqsood Ansari (2004) 9 SCC
616 wherein the High Court’s judgment limiting the entitlement of
the divorced wife to iddat period only was set aside on the ground
that the liability “to pay maintenance is not confined to iddat period”.
35. In other words, the constitutionality of the 1986 Act was upheld only
on the basis of the expansive, purposive and progressive interpretation
that harmonised the rights under secular and personal law. This
[2024] 7 S.C.R. 1301
Mohd. Abdul Samad v. The State of Telangana & Anr.
is consistent with the settled norms of judicial review of legislative
enactments whereby this Court reads a provision that is found to
offend a constitutional guarantee to save its constitutionality, vide
Binoy Viswam vs. Union of India (2017) 7 SCC 59, Pr. 83. Therefore,
while extending the scope of ‘reasonable and fair provision’ in the
1986 Act to the entire lifetime of Muslim women, it was noted in
paragraph 28 of Danial Latifi that ‘nowhere has Parliament provided
that reasonable and fair provision and maintenance is limited only for
the iddat period.’ Thus, it was held that an interpretative approach
de hors the social facts and questions touching upon basic human
rights should invariably be decided on constitutional considerations.
Therefore, the Parliament’s enactment cannot be construed to intend
unjust consequences according to this Court.
This is because under the provision of 1986 Act if during iddat period,
no provision is made for the entire life of the divorced wife or if the
same is inadequate particularly with the passage of time then Section
125 of the CrPC can be resorted to.
From the above, it can also be noted that if Section 3 read with
Section 4 excludes the liability of the husband of a Muslim woman
then there is no reason as to why his liability under Section 125 of
the CrPC must also be excluded.
36. The 1986 Act thus continues to operate within the same juridical
compass as the judgment in Shah Bano and the reasons for
upholding the constitutionality of Danial Latifi cannot be lost sight
of. The crux of the reasoning in Danial Latifi is that the 1986 Act is
a social welfare legislation that seeks to provide an additional right
and thereby, an additional remedy. Danial Latifi implicitly recognises
the cardinal principle of non-retrogression that prohibits the State
from taking measures or steps that deliberately lead to retrogression
on the enjoyment of rights either under the Constitution or otherwise
vide Navtej Singh Johar vs. Union of India (2018) 10 SCC 1, Pr.
202. I therefore reiterate that the 1986 Act does not take away rights
that divorced Muslim women have either under personal law or under
Section 125 of the CrPC. I do not find any inconsistency between
the provisions of the 1986 Act and Section 125 of the CrPC. Thus,
a Muslim divorced wife is entitled to maintenance under Section 125
CrPC irrespective of her personal law, as reiterated in Shabana Bano
vs. Imran Khan, 2009 (14) SCALE 331. Such a construction would
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not defeat the legislative intent and diminish the scope of additional
protection afforded to Muslim women under the 1986 Act.
37. I note that the fixation of the three-month time limit for disposal of
applications under the 1986 Act affords speedy justice and subserves
the salutary aim of women’s welfare and social security. Thus, the
1986 Act expands the protection of women and ought to be applied
as such. I find that remarriage of a divorced Muslim woman does not
nullify her claim to a just settlement under the 1986 Act, vide Abdul
Hameed vs. Fousiya (2004) 3 KLT 1049 wherein it was held that a
husband cannot recover the settlement amount awarded under the
1986 Act merely because his ex-wife gets remarried. This finding
is consistent with our legislative regime of protecting the rights of
married women against matrimonial harassment, vide Juveria Abdul
Majid Patni vs. Atif Iqbal Mansoori (2014) 10 SCC 736.
Access to Justice:
38. The question of interpreting Section 3 of the 1986 Act should also
be construed from the perspective of access to justice. Therefore,
a technical or pedantic interpretation of the 1986 Act would stultify
not merely gender justice but also the constitutional right of access
to justice for the aggrieved Muslim divorced women who are in dire
need of maintenance. 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. It follows
that a destitute Muslim woman has the right to seek maintenance
under Section 125 of the CrPC despite the enactment of the 1986
Act. Thus, an application for maintenance under Section 125 of the
CrPC would not prejudice another application under Section 3 of
the 1986 Act insofar as the latter is additional in nature and does
not pertain to the same requirements sought to be provided for by
Section 125 of the CrPC. One cannot be a substitute for or supplant
another; rather it is in addition to and not in derogation of the other.
39. In this context, it would be apposite to take note of this Court’s pertinent
observations in Rana Nahid @ Reshma @ Sana vs. Sahidul Haq
Chisti (2020) 7 SCC 657. The appeal before this Court arose out
of a judgment passed by the High Court of Rajasthan, by which the
order passed by the Family Court, converting the application for
maintenance under Section 125 of the CrPC into Section 3 of the
[2024] 7 S.C.R. 1303
Mohd. Abdul Samad v. The State of Telangana & Anr.
1986 Act and granting maintenance, was set aside. Banumathi, J.
in her judgment considered the question which fell for consideration,
namely, whether the Family Court had jurisdiction to try an application
filed by a Muslim divorced woman for maintenance under Section 3 of
the Act. After considering the provisions of the 1986 Act as well as the
relevant provisions of the Family Courts Act, 1984, it was observed in
paragraph 25 of the judgment that an application under Section 3(2) of
the 1986 Act by the divorced wife has to be filed before the competent
Magistrate having jurisdiction if she claims maintenance beyond the
iddat period. Even if the Family Court has been established in that
area, the Family Court, not having been conferred the jurisdiction under
Section 7 of the Family Courts Act, 1984 to entertain an application
filed under Section 3 of the 1986 Act, the Family Court shall have
no jurisdiction to entertain an application under Section 3(2) of the
1986 Act. The Family Court, therefore, cannot convert the petition for
maintenance under Section 125 of the CrPC to one under Section 3
or Section 4 of the 1986 Act. Accordingly, the High Court’s view was
affirmed and the appeal was dismissed.
However, Indira Banerjee, J. disagreeing with the aforesaid view
observed that the Family Court has the jurisdiction to convert the
application for maintenance filed under Section 125 of the CrPC
into an application under Section 3 of the 1986 Act and to decide
the same.
In view of the difference of opinion between the two learned Judges,
the matter was placed before Hon’ble the Chief Justice of India for
referring the matter to a larger Bench. However, the larger Bench of
three-Judges by its order dated 22.09.2022 disposed of the appeal
without going into the questions referred to the said Bench.
Be that as it may, what is of relevance from the aforesaid case, is
Banumathi, J.’s reasoning that the 1986 Act is not contrary to the
object of Chapter IX of the CrPC as it provides remedies to a divorced
Muslim woman. Therefore, the non-obstante clause, occurring in
Sections 3(1), 4(1) and 7 cannot be lightly assumed to bring in
the effect of supersession of Section 125 of the CrPC and cannot
be allowed ‘to demolish or extinguish the existing right unless the
legislative intention is clear, manifest and unambiguous’. I also find
force in Indira Banerjee J’s reasoning that the 1986 Act manifests the
Parliament’s intent to protect and further the rights of Muslim women.
1304 [2024] 7 S.C.R.
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Placing reliance upon the right to be treated equally irrespective of
religion, as it is enshrined in Article 2 of the Universal Declaration of
Human Rights and Articles 14 and 26 of the International Covenant
on Civil and Political Rights, the learned judge held that Muslim
women cannot be afforded a lesser degree of protection than other
classes of women. It was also held that:
“57. The Convention on the Elimination of All Forms of
Discrimination against Women, 1979, commonly referred to
as Cedaw, recognises amongst others, the right of women
to equality irrespective of religion, as a basic human right.
Article 2 of Cedaw exhorts State parties to ensure adoption
of a woman-friendly legal system and woman-friendly
policies and practices.
58. As a signatory to Cedaw, India is committed to adopt a
woman-friendly legal system and woman-friendly policies
and practices. The 1986 Act for Muslim Women, being
a post Cedaw law, this Court is duty-bound to interpret
the provisions of the said Act substantively, liberally, and
purposefully, in such a manner as would benefit women
of the Muslim community.”
40. Therefore, the position of law with regard to harmonious interpretation
of Sections 125-128 of the CrPC and the 1986 Act can be summarised
as under:
i. There cannot be a disparity amongst divorced Muslim women on
the basis of the law under which they were married or divorced
in the matter of their maintenance post-divorce. The definition
of “divorced woman” under the 1986 Act would include only a
Muslim woman who has married according to Muslim law but
also divorced under that law. But if a Muslim woman has been
married under the Special Marriage Act, such a Muslim woman
who is divorced, cannot get the benefit of the 1986 Act. Such a
Muslim woman, who is divorced, would have to proceed either
under the provisions of the Special Marriage Act, 1954 and/
or under Section 125 of the CrPC. Therefore, the protective
provision of Section 125 ought to remain available to every
divorced Muslim woman to avoid the absurd outcome of a section
of Muslim women being left remediless under the 1986 Act. As
a corollary, it is held that such women who are covered under
[2024] 7 S.C.R. 1305
Mohd. Abdul Samad v. The State of Telangana & Anr.
the 1986 Act are also entitled to the benefit of Section 125 of
the CrPC. Further, there can be no bar under the Explanation
(b) to Section 125 of the CrPC so as to exclude any Muslim
woman who has been divorced or has obtained a divorce from
her husband and has not remarried. This is irrespective of the
1986 Act being applicable to only such divorced Muslim woman
who qualifies within the definition of divorced woman under
Section 2(a) of the 1986 Act.
ii. Section 3 of the 1986 Act provides for a reasonable and fair
provision of maintenance to a divorced Muslim woman only
on certain terms and conditions within the iddat period by
her husband. Once the iddat period expires, the personal
law obligation to maintain the divorced Muslim woman by the
husband ceases. Per contra, under Section 125 of the CrPC, 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.
iii. Further, under Section 3(1)(b) of the 1986 Act, where a divorced
woman maintains the children born to her before or after her
divorce, a reasonable and fair provision and maintenance has
to be made and paid by her former husband only for a period
of two years from the respective dates of birth of such children
and not beyond the said period. However, under Section 125
of the CrPC, there is no such restriction of maintenance to be
provided only for a period of two years from the respective
dates of birth of such children in the case of a divorced wife.
The obligation is until the children attain the age of majority
and in terms of the said Section.
iv. What is of further significance is the fact that by Act 50 of 2001
[by Section 2(i)(a)] w.e.f. 24.09.2001, sub-section (1) of Section
125 of the CrPC has been amended to delete the words “not
exceeding 500 rupees in the whole”. By way of this omission,
there is no upper limit fixed for payment of maintenance under
the said provision. Therefore, Section 125 of the CrPC is a more
beneficial provision as compared to the provisions of the 1986
Act vis-à-vis a Muslim divorced woman in the context of the
obligations of a former husband and the rights of a divorced
Muslim woman. This amendment to Section 125 of the CrPC
being subsequent to the enforcement of the 1986 Act, is so
1306 [2024] 7 S.C.R.
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significant that it virtually makes Section 3 of the 1986 Act very
narrow and insignificant although the expression “provision”
under Section 3(1) of the 1986 Act has been broadly interpreted
by this Court in Danial Latifi.
v. 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. I also note that
although the provisions of the 1986 Act have been upheld by a
Constitution Bench of this Court in the case of Danial Latifi, the
same would not in any way restrict the application of Section
125 of the CrPC to a divorced Muslim woman.
vi. Further, under Section 5 of the 1986 Act, if, on the date of the
first hearing of the application under sub-section (2) of Section
3, a divorced woman and her husband declare by an affidavit
or any other declaration in writing in the form prescribed, either
jointly or separately that they would prefer to be governed by the
provisions of Section 125 to Section 128 of the CrPC and file such
an affidavit or declaration in the Court hearing the application,
the Magistrate shall dispose of such application accordingly.
Therefore, the 1986 Act itself provides for the applicability of
Sections 125 to 128 of the CrPC, even when an application
under sub-section (2) of Section 3 is made seeking relief as per
sub-section (1) of Section 3. However, the said option given to
the divorced woman and her former husband mandates that
there must be a declaration which is ad idem for the purpose of
applying the provisions of Sections 125 to 128 of the CrPC, when
an application is made under sub-section (2) of Section 3 of the
1986 Act. This would imply that if there is no such declaration
given then Sections 125 to 128 of the CrPC would not apply
when an application is made under sub-section (2) of Section 3
of the 1986 Act by a divorced Muslim woman. This again puts a
fetter on the applicability of Sections 125 to 128 of the CrPC to
such a divorced woman inasmuch it is necessary for her former
husband to concur to be governed by the provisions of Sections
[2024] 7 S.C.R. 1307
Mohd. Abdul Samad v. The State of Telangana & Anr.
125 to 128 of the CrPC. This means that an option is given to
the former husband of a divorced Muslim woman to concur or
not to do so. In other words, if there is no such concurrence by
the former husband then the aforesaid provisions of the CrPC
would not be made applicable to a proceeding initiated under
sub-section (2) of Section 3. Such a fetter, in my view, is of
no consequence if a Muslim divorced woman can unilaterally
maintain an application under Section 125 of the CrPC before
the Magistrate or the Family Court, in which event when she
unilaterally files such an application, there is no necessity of
seeking a declaration from the former husband as required
under Section 5 of the 1986 Act.
vii. On the other hand, if a divorced Muslim woman files an
application for maintenance under Section 125 of the CrPC,
there is no provision for considering the same under Section 3
of the 1986 Act. The reasons for the same are not far to see:
firstly, because Section 125 of the CrPC and Section 3(1) of the
1986 Act operate in two separate fields. The former is a statutory
right created, inter alia, for all divorced women, irrespective of
the faith they may belong to or follow. On the other hand, the
1986 Act is in the nature of a personal law which applies to
only divorced Muslim women who were married under Muslim
law and divorced under the said law.
viii. While under the CrPC prior to CrPC of 1973, the alteration
of maintenance was considered on the basis of change
in circumstances but Section 127(3)(b) of the CrPC, 1973
specifically takes into account cases where a divorced woman
has had the benefit of maintenance under the customary or
personal law. In a case of a Hindu divorced woman, it could
also include the Hindu Marriage Act, 1955 or Hindu Adoption
and Maintenance Act, 1954. In the same manner in the case
of a Muslim divorced woman, the 1986 Act is in the nature of
a quasi-personal law. Section 127(3)(b), therefore, balances
the obligation to pay maintenance by a former husband of a
Muslim woman if he has done so under the provisions of any
customary or personal law which would also include the 1986
Act applicable to the parties. In such an event, there could
always be an alteration in the allowance when there is a change
in the circumstances of any person receiving, under Section
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125 of the CrPC, a monthly allowance towards the interim
maintenance or maintenance under the said Section payable
to a divorced wife. In which event, the alteration could be made
in accordance with Section 127 of the CrPC.
ix. Section 127 would apply only when there has already been an
order for maintenance or interim maintenance passed under
Section 125 of the CrPC and if there is a subsequent order
passed under the provisions of the 1986 Act. Then, an order for
alteration in the maintenance under Section 125 of the CrPC
could be made by the Magistrate. Section 127(3)(b) would
however not detract a divorced Muslim woman from filing an
application under Section 125 of the CrPC, by exercising her
option to do so even in the absence of invoking the provisions
of the 1986 Act. In other words, such a vulnerable woman
cannot be constrained to seek remedy only under the provisions
of the 1986 Act. The choice remains with her to be exercised
in accordance with law and discretion. However, if a divorced
Muslim woman already has an order passed under Section
125 of the CrPC, and thereafter also files an application under
Section 3 or Section 4 of the 1986 Act and an order is made
under the said Act also, in such an event, there could be an
alteration in the order of payment for maintenance or interim
maintenance, as the case may be, under Section 127 of the
CrPC. This is in order to ensure that there is no double benefit
which would be availed by a divorced Muslim woman under
Section 125 of the CrPC as well as under the 1986 Act.
x. Hence, what emerges is that 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. As I find no
conflict between the provisions of the 1986 Act, which is a piece
of legislation in the nature of quasi-personal law insofar as the
divorced Muslim wife is concerned and Section 125 of the CrPC
which is a statutory provision applicable to women belonging to
all faiths therefore the latter cannot be restricted in its operation
to divorced Muslim women. 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
[2024] 7 S.C.R. 1309
Mohd. Abdul Samad v. The State of Telangana & Anr.
citizen only on the ground of religion, race, caste, sex, place
of birth or any of them. Further, our interpretation is consistent
with the spirit of Article 15(3) of the Constitution.
2019 Act:
41. At this juncture, Section 5 of the Muslim Women (Protection of Rights
on Marriage) Act, 2019 (“2019 Act”) merits consideration.
“5. Subsistence allowance.- Without prejudice to the
generality of the provisions contained in any other law for
the time being in force, a married Muslim woman upon
whom talaq is pronounced shall be entitled to receive from
her husband such amount of subsistence allowance, for
her and dependent children, as may be determined by
the Magistrate.”
Section 5 extends to Muslim women upon whom talaq is pronounced.
Talaq is defined in Section 2(c) as ‘talaq-e-biddat’ or any other similar
form of talaq having the effect of instantaneous and irrevocable
divorce pronounced by a Muslim husband which is void and illegal
as per Section 3 of the said Act.’ In other words, married Muslim
woman can seek subsistence allowance if talaq, as defined in the
2019 Act, is pronounced on her.
In case a woman has been divorced in a valid manner, she can
approach the Magistrate under the 1986 Act but if she has been
the victim of the mischief defined under the 2019 Act, then her
right to subsistence allowance is secured through Section 5 of the
2019 Act. The intent of the Parliament is clear: it seeks to provide
adequate remedies to women from economic deprivation that may
result from marital discord, irrespective of their status as a married
or divorced woman. Therefore, prior to a divorce in accordance with
law, a married woman has access to maintenance under the general
law, i.e., Section 125 of the CrPC and under a special law, i.e., 2019
Act. When divorce is void and illegal, such a Muslim woman can
also seek remedy under Section 125 of the CrPC.
Maintenance and the Institution of Marriage: A Broader
Perspective.
42. Before parting with this case, I pose a question to myself. What
is the position of a wife after her marriage in Indian Society? This
Court, speaking through Murtaza Fazal Ali, J. in Sirajmohmedkhan
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Janmohamadkhan vs. Hafizunnisa Yasinkh, AIR 1981 SC 1972,
had acknowledged the paradigm shift from viewing maintenance as
a mere charity to a matter of parity and rights, essential for women.
It is necessary to extract the pertinent observations as under:
“14. ... the outmoded and antiquated view that the object
of s. 488 was to provide an effective and summary remedy
to provide for appropriate food, clothing and lodging for
a wife. This concept has now become completely out
dated and absolutely archaic. After the International Year
of Women when all the important countries of the world
are trying to give the fair sex their rightful place in society
and are working for the complete emancipation of women
by breaking the old shackles and bondage in which they
were involved, it is difficult to accept a contention that
the salutary provisions of the Code are merely meant to
provide a wife merely with food, clothing and lodging as
if she is only a chattel and has to depend on the sweet
will and mercy of the husband. …”
43. In this context, I would like to advert to the vulnerability of married
women in India who do not have an independent source of income or
who do not have access to monetary resources in their households
particularly for their personal expenses. In Indian society, it is an
established practice that once a daughter is married, she resides
with her husband and/or his family unless due to exigency of career
or such other reason she has to reside elsewhere. In the case of
a woman who has an independent source of income, she may be
financially endowed and may not be totally dependent on her husband
and his family. But what is the position of a married woman who
is often referred to as a “homemaker” and who does not have an
independent source of income, whatsoever, and is totally dependent
for her financial resources on her husband and on his family? It is
well-known that such an Indian homemaker tries to save as much
money as possible from the monthly household budget, not only to
augment the financial resources of the family but possibly to also
save a small portion for her personal expenses. Such a practice is
followed in order to avoid making a request to the husband or his
family for her personal expenses. Most married men in India do not
realise this aspect of the predicament such Indian homemakers face
as any request made for expenses may be bluntly turned down by
[2024] 7 S.C.R. 1311
Mohd. Abdul Samad v. The State of Telangana & Anr.
the husband and/or his family. Some husbands are not conscious of
the fact that the wife who has no independent source of finance is
dependent on them not only emotionally but also financially. On the
other hand, a wife who is referred to as a homemaker is working
throughout the day for the welfare of the family without expecting
anything in return except possibly love and affection, a sense of comfort
and respect from her husband and his family which are towards her
emotional security. This may also be lacking in certain households.
44. While the contributions of such a homemaker get judicial recognition
upon her unfortunate death while computing compensation in cases
under the Motor Vehicles Act, 1988 vide Kirti vs. Oriental Insurance
Co. Ltd. (2021) 2 SCC 166, the services and sacrifices of homemakers
for the economic well-being of the family, and the economy of the
nation, remain uncompensated in large sections of our society.
45. Therefore, I observe that an Indian married man must become
conscious of the fact that he would have to financially empower and
provide for his wife, who does not have an independent source of
income, by making available financial resources particularly towards
her personal needs; in other words, giving access to his financial
resources. Such financial empowerment would place such a vulnerable
wife in a more secure position in the family. Those Indian married
men who are conscious of this aspect and who make available their
financial resources for their spouse towards their personal expenses,
apart from household expenditure, possibly by having a joint bank
account or via an ATM card, must be acknowledged.
46. Another aspect of vulnerability of a married Indian woman is regarding
her security of residence in her matrimonial home. In this context
in the case of Prabha Tyagi vs. Kamlesh Devi (2022) 8 SCC 90,
this Court while considering Section 17 along with other provisions
of the Domestic Violence Act, 2005 opined as under:
“60. In our view, the question raised about a subsisting
domestic relationship between the aggrieved person
and the person against whom the relief is claimed must
be interpreted in a broad and expansive way, so as to
encompass not only a subsisting domestic relationship in
praesenti but also a past domestic relationship. Therefore,
Parliament has intentionally used the expression “domestic
relationship” to mean a relationship between two persons
1312 [2024] 7 S.C.R.
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who not only live together in the shared household but
also between two persons who “have at any point of time
lived together” in a shared household.”
47. Thus, both ‘financial security’ as well as ‘security of residence’ of
Indian women have to be protected and enhanced. That would truly
empower such Indian women who are referred to as ‘homemakers’
and who are the strength and backbone of an Indian family which is
the fundamental unit of the Indian society which has to be maintained
and strengthened. It goes without saying that a stable family which
is emotionally connected and secure gives stability to the society
for, it is within the family that precious values of life are learnt and
built. It is these moral and ethical values which are inherited by a
succeeding generation which would go a long way in building a
strong Indian society which is the need of the hour. It is needless to
observe that a strong Indian family and society would ultimately lead
to a stronger nation. But, for that to happen, women in the family
have to be respected and empowered!
In view of the aforesaid discussion, the Criminal Appeal stands
dismissed.
Order
What emerges from our separate but concurring judgments are the
following conclusions:
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.
c) Insofar as divorced Muslim women are concerned, -
i) 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.
ii) 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
[2024] 7 S.C.R. 1313
Mohd. Abdul Samad v. The State of Telangana & Anr.
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.
iii) 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.
d) 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.
e) In case of an illegal divorce as per the provisions of the 2019
Act then,
i) 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.
ii) 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.
iii) The provisions of the 2019 Act provide remedy in addition
to and not in derogation of Section 125 of the CrPC.
f) The criminal appeal is dismissed.
Result of the case: Appeal dismissed.
†
Headnotes prepared by: Ankit Gyan
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