End Of The Conundrum: Divorced Muslim Women's Right To Maintenance Is Well Settled
On July 10th 2024, Justice AG. M July 10th 2024, Justice AG. Masih & Justice BV. Nagarathna of the Supreme Court penned
a landmark judgement on the jurisprudence of the right to maintenance under section 125 of the
Code of Criminal Procedure, 1973. The judgement underscored that S.125 of CrPC carries a
secular remedy available to a divorced woman irrespective of her religion. The verdict is said to
be a progressive step in empowering the rights of Muslim women.
In 1986, the Rajiv Gandhi govt. had enacted 'the Muslim Women (Protection of Rights on Divorce) Act' which was a special legislation to govern the right of maintenance of Divorced Muslim Women. However various High Courts had been delivering contradictory judgements with regard to applicability of both these statues. Now, the Supreme Court has taken a harmonious approach to rest the prevailing conundrum and held "the MWA, 1986 is not in derogation with the CrPC and doesn't extinguish a secular remedy under the general legislation". Hence, a divorced Muslim woman can now seek maintenance either under CrPC or 1986 Act or both simultaneously.
Meaning & Significance of maintenance under S.125 of CrPC:
It is quite challenging to formally define 'maintenance'. The courts have, however, construed it to imply usually suitable housing, clothing, and food. The word maintenance should not be used in such a limited sense, though.
Section 125 plays a pivotal role in ensuring that vulnerable members of the society, particularly women are not left in a financial distress. It considers situations where there is a moral and legal duty to provide financial support, even in absence of a formal agreement. It is an undeniable fact that a large number of women in Indian society pursue household works and don't have any resort to earning. By providing a legal framework to claim maintenance, S.125 helps in ensuring that the basic needs of food, clothing, and shelter are met, as every individual deserves to live a life of dignity and security. In essence, this right exemplifies the principle of equity and social justice.
Maintenance under the Sharia Law:
Under the Muslim law in India, 'maintenance' is known as 'Nafqah'. It is the amount which a man spends on his family. The right to maintenance of a Muslim woman is not a conditional but an absolute right, thus irrespective of the fact that whether she can maintain herself, she is entitled to 'Nafqah' under the Sharia Law. The law obligates the husband to maintain her wife in all circumstances.
According to the Quran, marriage is to be permanent as a firm bond. The relationship between the spouses should ideally be based on love & affection and any decision upon a concerning issue should be pursued by mutual consent. However, in case when marital harmony cannot be attained, the Quran gives a last resort to repudiate the marriage in the form of 'Divorce'. The hadith also sets a waiting period (iddat) after the divorce, which is generally 3 months. During this period a woman is abandoned to remarry so as to ascertain she is not pregnant and thus guarantees the paternity of future children.
It is noteworthy that according to the Sharia Law the husband's liability to provide financial assistance to his wife extends till the iddat period only and not afterwards as the marriage in Islam is construed as a contract.
Mohd. Ahmed Khan vs. Shah Bano Begum (1985):
Mohd. Khan, an eminent lawyer married Shah Bano, a Muslim woman in 1932. They belonged to Indore, a city in Madhya Pradesh and had 5 children. After living together for years, khan divorced Bano when she was 68 years old. In pursuit of her maintenance, Bano approached the local court at Indore under S 125 of CrPC. She argued for a claim of INR 500 per month as alimony for her & 5 children. However, Khan countered that he is under no obligation to pay the per month alimony to her former wife except INR 5,400 which was apparently promised and prescribed under the Islamic law.
In 1979, the local court directed Khan to pay INR 25 per month by way of alimony. Later in 1980, the High Court increased the amount to Rs 179.20. However, Khan challenged this verdict in the Supreme Court.
At first, a two judges bench of the Supreme Court heard the petition and referred the matter to a larger bench. All India Muslim Personal Law Board & Jamaat e Islami Hind later joined the case as interveners. In 1985, the then CJI led constitutional bench heard the case and unanimously held in favour of Shah Bano. The Supreme Court said that a divorced Muslim woman's right extends beyond the iddat period and she is entitled to a secular remedy u/s 125 of CrPC. Restraining muslim women to claim maintenance under CrPC will be an infringement of their fundamental right enshrined under article 14 & 15 of the Indian Constitution.
The Muslim Women (Protection of Rights on Divorce) Act, 1986:
The judgement in the Shah Bano case led to a pan India protest by Muslims. All India Muslim Personal law Board and Muslim clerics saw the verdict as an attack on their Personal law. Muslim were the core voters of the then incumbent Rajiv Gandhi govt. That's why it had become a moral obligation on the part of the government to resolve the matter. The same happened by way of enactment of a special legislation, known to be 'the Muslim Women (Protection of Rights on Divorce) Act, 1986'. The Act was brought to appease the Muslim community & to nullify the ruling of the Shah Bano case.
Section 3 of the Act obligated the husband to assist her divorced wife with reasonable and fair maintenance within the iddat period thereby the provision overturned what was held in the Shah Bano case. If the woman doesn't remarry after the iddat period, the husband is under no obligation to pay maintenance. However in such a situation, her relatives, who will be entitled to inherit her property upon her death, will provide maintenance to her as per Section 4 of the Act. Also, if she has no such relatives, the State Waqf Board was to bear the amount of maintenance. Thus, the husband's liability was restricted till the iddat period only.
Danial Latifi & Ors. vs. Union of India (2001):
The constitutional validity of the 1986 Act was called in question before the 5 judge bench of the Supreme Court. The petitioner contended that the Act was brought to dilute the judgement of the Shah Bano case. The relatives & waqf board were unnecessarily burdened to pay maintenance in some circumstances. Furthermore, the Act has the potential of suffocating the women and undermines the secular character of the constitution. Denying maintenance under S. 125 CrPC will violate the Fundamental rights of women under article 14, 15 and 21 of the constitution, the petitioner argued.
The Supreme Court upheld the constitutional validity of the Act. However, the Court deciphered S. 3(1)(a) of the Act to mean that the husband's liability extends beyond the iddat period. The judges opined that if the husband doesn't pay a reasonable and fair maintenance as mandated by the Act then the woman has all liberty to seek maintenance under the S. 125 of CrPC. Thus, failure on the part of the husband to provide fair maintenance will entitle the former wife to claim her maintenance under CrPC.
Mohd. Abdul Samad vs. State of Telangana & Ors. (2024):
Brief Facts:
Abdul Samad got married to his wife on 15.12.2012. Later the relationship between them deteriorated and the wife left the matrimonial home in 2016. She then initiated criminal proceedings against her husband under 498A and various other sections of IPC. After which, the husband repudiated his marriage by way of triple talaq (now illegal) vide dated 28.09.2017. Further, he attempted to send INR 15,000 as maintenance for the iddat period, which the wife refused. Instead, she moved an application under 125 of CrPC before the family court in 2019.
The magistrate allowed the interim maintenance in 2023, which was challenged by the husband in the High Court. The High Court upheld the magistrate's order of interim maintenance. The husband then moved the Supreme Court.
Appellant's Contention:
The prime contention of the appellant was the provisions of S.125 of CrPC do not prevail in light of the enactment of the 1986 Act. To buttress his contention, he quoted the ruling of the "M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation of India and Another(1980)" case, where the court held Lex specialis derogat legi generali' is a settled principle which states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis).
In addition, he also argued that the non-obstante clause in S.3 & 4 of the 1986 Act shall have an overriding effect on any other law operating the same field. The 1986 Act provides a more beneficial and efficacious remedy than S.125 of CrPC for a divorced Muslim woman, thereby the recourse lies exclusively in the 1986 Act, he contended before the Apex Court.
Judgement: The Supreme Court rejected the appellant's contentions and held that "that equivalent rights of maintenance ascertained under both, the secular provision of S.125 of CrPC 1973, and the personal law provision of S.3 of the 1986 Act, parallelly exist in their distinct domains and jurisprudence". The non-obstante clause in the S.3 & 4 do not bar the recourse of S.125 of CrPC as same would be a violation of fundamental rights under article 14, 15 and 21 of the Indian Constitution, the court categorically underscored. \
The Court also clarified that if the husband had already provided maintenance till the iddat period according to the 1986 Act and the wife then is unable to maintain herself, she would be entitled to claim alimony under S.125 of CrPC. 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 against a divorced woman entitled to maintenance under S.125 of the CrPC or any personal or other law such as the 1986 Act, J. Nagarathna opined. Thus, the Court had unequivocally opened the doors of maintenance for divorced Muslim women under both laws.
Conclusion:
The judgement is a watershed moment for the divorced Muslim women in India, who had to run from pillar to the post in want of maintenance. Now it is upto the parties that they follow this verdict in letter and spirit. By the application of Stare decisis principle, the contradictory views of the various High Courts will become things of the past. The Apex Court vehemently demonstrated that discrimination based on religion will not be tolerated. Indeed, S.125 is secular remedy but extremely gender specific.
It is noteworthy that the provision of S.125 of the CrPC has been retained in the newly enforced BNNS (Bharatiya Nagarik Suraksha Sanhita, 2023) under S.144. However, in today's era, a deserted husband may require such remedy from her financially independent wife. Hence, it is growing vox populi that S.144 of the BNNS (erstwhile S.125 of the CrPC) should be made gender neutral in interest of those husbands who are unable to maintain themselves.
References:
In 1986, the Rajiv Gandhi govt. had enacted 'the Muslim Women (Protection of Rights on Divorce) Act' which was a special legislation to govern the right of maintenance of Divorced Muslim Women. However various High Courts had been delivering contradictory judgements with regard to applicability of both these statues. Now, the Supreme Court has taken a harmonious approach to rest the prevailing conundrum and held "the MWA, 1986 is not in derogation with the CrPC and doesn't extinguish a secular remedy under the general legislation". Hence, a divorced Muslim woman can now seek maintenance either under CrPC or 1986 Act or both simultaneously.
Meaning & Significance of maintenance under S.125 of CrPC:
It is quite challenging to formally define 'maintenance'. The courts have, however, construed it to imply usually suitable housing, clothing, and food. The word maintenance should not be used in such a limited sense, though.
Section 125 plays a pivotal role in ensuring that vulnerable members of the society, particularly women are not left in a financial distress. It considers situations where there is a moral and legal duty to provide financial support, even in absence of a formal agreement. It is an undeniable fact that a large number of women in Indian society pursue household works and don't have any resort to earning. By providing a legal framework to claim maintenance, S.125 helps in ensuring that the basic needs of food, clothing, and shelter are met, as every individual deserves to live a life of dignity and security. In essence, this right exemplifies the principle of equity and social justice.
Maintenance under the Sharia Law:
Under the Muslim law in India, 'maintenance' is known as 'Nafqah'. It is the amount which a man spends on his family. The right to maintenance of a Muslim woman is not a conditional but an absolute right, thus irrespective of the fact that whether she can maintain herself, she is entitled to 'Nafqah' under the Sharia Law. The law obligates the husband to maintain her wife in all circumstances.
According to the Quran, marriage is to be permanent as a firm bond. The relationship between the spouses should ideally be based on love & affection and any decision upon a concerning issue should be pursued by mutual consent. However, in case when marital harmony cannot be attained, the Quran gives a last resort to repudiate the marriage in the form of 'Divorce'. The hadith also sets a waiting period (iddat) after the divorce, which is generally 3 months. During this period a woman is abandoned to remarry so as to ascertain she is not pregnant and thus guarantees the paternity of future children.
It is noteworthy that according to the Sharia Law the husband's liability to provide financial assistance to his wife extends till the iddat period only and not afterwards as the marriage in Islam is construed as a contract.
Mohd. Ahmed Khan vs. Shah Bano Begum (1985):
Mohd. Khan, an eminent lawyer married Shah Bano, a Muslim woman in 1932. They belonged to Indore, a city in Madhya Pradesh and had 5 children. After living together for years, khan divorced Bano when she was 68 years old. In pursuit of her maintenance, Bano approached the local court at Indore under S 125 of CrPC. She argued for a claim of INR 500 per month as alimony for her & 5 children. However, Khan countered that he is under no obligation to pay the per month alimony to her former wife except INR 5,400 which was apparently promised and prescribed under the Islamic law.
In 1979, the local court directed Khan to pay INR 25 per month by way of alimony. Later in 1980, the High Court increased the amount to Rs 179.20. However, Khan challenged this verdict in the Supreme Court.
At first, a two judges bench of the Supreme Court heard the petition and referred the matter to a larger bench. All India Muslim Personal Law Board & Jamaat e Islami Hind later joined the case as interveners. In 1985, the then CJI led constitutional bench heard the case and unanimously held in favour of Shah Bano. The Supreme Court said that a divorced Muslim woman's right extends beyond the iddat period and she is entitled to a secular remedy u/s 125 of CrPC. Restraining muslim women to claim maintenance under CrPC will be an infringement of their fundamental right enshrined under article 14 & 15 of the Indian Constitution.
The Muslim Women (Protection of Rights on Divorce) Act, 1986:
The judgement in the Shah Bano case led to a pan India protest by Muslims. All India Muslim Personal law Board and Muslim clerics saw the verdict as an attack on their Personal law. Muslim were the core voters of the then incumbent Rajiv Gandhi govt. That's why it had become a moral obligation on the part of the government to resolve the matter. The same happened by way of enactment of a special legislation, known to be 'the Muslim Women (Protection of Rights on Divorce) Act, 1986'. The Act was brought to appease the Muslim community & to nullify the ruling of the Shah Bano case.
Section 3 of the Act obligated the husband to assist her divorced wife with reasonable and fair maintenance within the iddat period thereby the provision overturned what was held in the Shah Bano case. If the woman doesn't remarry after the iddat period, the husband is under no obligation to pay maintenance. However in such a situation, her relatives, who will be entitled to inherit her property upon her death, will provide maintenance to her as per Section 4 of the Act. Also, if she has no such relatives, the State Waqf Board was to bear the amount of maintenance. Thus, the husband's liability was restricted till the iddat period only.
Danial Latifi & Ors. vs. Union of India (2001):
The constitutional validity of the 1986 Act was called in question before the 5 judge bench of the Supreme Court. The petitioner contended that the Act was brought to dilute the judgement of the Shah Bano case. The relatives & waqf board were unnecessarily burdened to pay maintenance in some circumstances. Furthermore, the Act has the potential of suffocating the women and undermines the secular character of the constitution. Denying maintenance under S. 125 CrPC will violate the Fundamental rights of women under article 14, 15 and 21 of the constitution, the petitioner argued.
The Supreme Court upheld the constitutional validity of the Act. However, the Court deciphered S. 3(1)(a) of the Act to mean that the husband's liability extends beyond the iddat period. The judges opined that if the husband doesn't pay a reasonable and fair maintenance as mandated by the Act then the woman has all liberty to seek maintenance under the S. 125 of CrPC. Thus, failure on the part of the husband to provide fair maintenance will entitle the former wife to claim her maintenance under CrPC.
Mohd. Abdul Samad vs. State of Telangana & Ors. (2024):
Brief Facts:
Abdul Samad got married to his wife on 15.12.2012. Later the relationship between them deteriorated and the wife left the matrimonial home in 2016. She then initiated criminal proceedings against her husband under 498A and various other sections of IPC. After which, the husband repudiated his marriage by way of triple talaq (now illegal) vide dated 28.09.2017. Further, he attempted to send INR 15,000 as maintenance for the iddat period, which the wife refused. Instead, she moved an application under 125 of CrPC before the family court in 2019.
The magistrate allowed the interim maintenance in 2023, which was challenged by the husband in the High Court. The High Court upheld the magistrate's order of interim maintenance. The husband then moved the Supreme Court.
Appellant's Contention:
The prime contention of the appellant was the provisions of S.125 of CrPC do not prevail in light of the enactment of the 1986 Act. To buttress his contention, he quoted the ruling of the "M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation of India and Another(1980)" case, where the court held Lex specialis derogat legi generali' is a settled principle which states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis).
In addition, he also argued that the non-obstante clause in S.3 & 4 of the 1986 Act shall have an overriding effect on any other law operating the same field. The 1986 Act provides a more beneficial and efficacious remedy than S.125 of CrPC for a divorced Muslim woman, thereby the recourse lies exclusively in the 1986 Act, he contended before the Apex Court.
Judgement: The Supreme Court rejected the appellant's contentions and held that "that equivalent rights of maintenance ascertained under both, the secular provision of S.125 of CrPC 1973, and the personal law provision of S.3 of the 1986 Act, parallelly exist in their distinct domains and jurisprudence". The non-obstante clause in the S.3 & 4 do not bar the recourse of S.125 of CrPC as same would be a violation of fundamental rights under article 14, 15 and 21 of the Indian Constitution, the court categorically underscored. \
The Court also clarified that if the husband had already provided maintenance till the iddat period according to the 1986 Act and the wife then is unable to maintain herself, she would be entitled to claim alimony under S.125 of CrPC. 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 against a divorced woman entitled to maintenance under S.125 of the CrPC or any personal or other law such as the 1986 Act, J. Nagarathna opined. Thus, the Court had unequivocally opened the doors of maintenance for divorced Muslim women under both laws.
Conclusion:
The judgement is a watershed moment for the divorced Muslim women in India, who had to run from pillar to the post in want of maintenance. Now it is upto the parties that they follow this verdict in letter and spirit. By the application of Stare decisis principle, the contradictory views of the various High Courts will become things of the past. The Apex Court vehemently demonstrated that discrimination based on religion will not be tolerated. Indeed, S.125 is secular remedy but extremely gender specific.
It is noteworthy that the provision of S.125 of the CrPC has been retained in the newly enforced BNNS (Bharatiya Nagarik Suraksha Sanhita, 2023) under S.144. However, in today's era, a deserted husband may require such remedy from her financially independent wife. Hence, it is growing vox populi that S.144 of the BNNS (erstwhile S.125 of the CrPC) should be made gender neutral in interest of those husbands who are unable to maintain themselves.
References:
- The Code of Criminal Procedure, 1973 (Act No. 2 of 1974).
- The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023).
- The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986).
- Mohd. Ahmad Khan vs. Shah Bano Begum, AIR 1985 SC 945.
- Danial Latifi vs. Union of India, AIR 2001 SC 3958.
- Mohd Abdul Samad v. State of Telangana, 2024 LiveLaw (SC) 452.
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