The bench, comprising Justices BV Nagarathna and Augustine George Masih, delivered separate but concurring judgments, dismissing a petition by a Muslim man who challenged the directive to pay interim maintenance to his divorced wife under Section 125 of the CrPC, which is now Section 144 of the Bharatiya Nagrik Suraksha Sanhita, 2023.

The Court ruled that the "Muslim Women (Protection of Rights on Divorce) Act, 1986, which provides for certain rights to Muslim women upon divorce, does not supersede secular laws".

Case Title: Mohd. Abdul Samad v. State of Telangana

Provision: Section 125 of the Code of Criminal Procedure (CrPC).
Matter: Muslim women are entitled to claim maintenance under 125 CrPC.
Date: July 10, 2024,
Bench: Supreme Court of India

Provisions Relevant To The Case
Section 125
This provision specifies the obligation of a person with sufficient means must maintain his wife who cannot maintain herself.

A Magistrate can order such a person to pay a monthly allowance for maintenance if neglect or refusal is proven. The Magistrate can also order interim maintenance during the proceedings.

A wife cannot claim maintenance if she is living in adultery, refuses to live with her husband without a valid reason, or if they live separately by mutual consent.

The Magistrate will cancel the order if the wife is proven to be living in adultery, refuses to live with her husband without valid reason, or if they live separately by mutual consent.

Section 3 the Muslim Women (Protection of Rights on Divorce) Act, 1986

A divorced women is entitled to reasonable and fair provision and maintenance from her former husband within the Iddat period. If she maintains their children, she is entitled to reasonable and fair maintenance from her former husband for two years from the children's birth dates. She is also entitled to the mahr or dower agreed upon at the time of marriage, and is entitled to all properties given to her before, during, or after the marriage by her relatives, friends, or husband.

If these entitlements are not met, she or her representative can apply to a Magistrate for an order to ensure payment of maintenance, mahr, or delivery of properties.

If the husband fails to comply with the order, the Magistrate can issue a warrant to collect the maintenance or mahr and may sentence the husband to imprisonment for up to one year or until payment is made.

Section 4 the Muslim Women (Protection of Rights on Divorce) Act, 1986

If a divorced woman has not remarried and cannot support herself after the iddat period, a Magistrate can order her relatives, who would inherit her property under Muslim law, to pay her reasonable maintenance based on her needs, lifestyle during marriage, and their financial ability. Maintenance is divided among these relatives according to their inheritance shares. If the woman has no relatives or the relatives cannot afford to pay, the Magistrate can direct the State Wakf Board to pay her maintenance or cover the shares of the relatives who are unable to pay.

Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986

If, on the first hearing date of an application, a divorced woman and her ex-husband declare in writing that they prefer the provisions of sections 125 to 128 of the CrPC, the Magistrate will handle the application accordingly.

Brief History
This isn't the first case that has ignited the discussion on maintenance after divorce under S.125 of CrPC with respect to the Muslim women.

1. The Shah Bano case
   Case Summary: In 1985, the Shah Bano case created significant controversy in India.
   
   Several issues were raised such as whether the "wife" definition includes a divorced Muslim women and whether the secular law overrides the personal law.
   
   The court in this case held that the term 'wife" in Section 125 of CrPC also includes divorced Muslim women unless they are not remarried, and the right of maintenance granted to divorced women by the virtue of Section 125 of CrPC remains unaffected by any personal law, in this case, the Muslim law.
   
   Section 125 of CrPC is applicable to all divorced women as well, irrespective of their religion, and as far as the conflict is concerned, if there arises any conflict between Section 125 of CrPC and personal law, the provision of CrPC will prevail over the other.
   
   It is noteworthy that the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted by the government of Rajiv Gandhi as a consequence of this judgement, overturning the decision of Supreme court. After the enactment of this act several petitions were filed in the court mainly challenging the Section 3 and Section 4 of the Act.
   
   The Muslim Women (Protection of Rights on Divorce) Act
   The act seemed to limit the right of maintenance of divorced Muslim women, since under sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman loses entitlement to maintenance from her husband after the iddat period. After the Iddat period, she must seek maintenance from individuals specified in section 4 or from the Waqf Board.
   
   The act appeared to contravene Article 14 of the Constitution, which guarantees equality and equal protection under the law. Moreover, it raised concerns under Article 15 of the Constitution, which prohibits discrimination on the grounds of religion, as the Muslim Act applies specifically to Muslim divorced women based solely on their religious affiliation.
    
2. Daniel Latifi v. Union of India
   In 2001, Daniel Latifi, counsel of Shah Bano, filed a Writ Petition in the Supreme Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
   
   In the case of Daniel Latifi v. Union of India, the court interpreted the Muslim Women (Protection of Rights on Divorce) Act, 1986 in such a way that prevented it from being declared as unconstitutional.
   
   The court held that the liability of a husband to pay maintenance to his wife is not limited to the Iddat period but it extends beyond it. The reasoning given by the court was that the wording of Section 3 (1), "reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband" was interpreted to mean that the husband must pay maintenance to the wife before the iddat period expires and that if he cannot do so, the wife may recover it as provided in Section 3(3) of the Act.
   
   However, nowhere does it state that reasonable and fair provision and maintenance is limited to the iddat period and not beyond it.
   
   Therefore, the Court ruled that a husband's obligation to support and maintain his wife extends for the rest of the divorced wife's life unless she marries again.

Recent Judgment
On 10th July 2024, the Honourable Supreme Court of India gave a judgement pronouncing that divorced Muslim women can claim maintenance under Section 125 of the CrPC. The court discussed few more pertinent issues which this research aims to present.

Facts Of The Case:
The parties entered the matrimonial consortium on November 15, 2012. However, as their relationship deteriorated, Respondent left the matrimonial home on April 9, 2016. Subsequently, Respondent initiated criminal proceedings against the Appellant by lodging FIR for offenses punishable under Sections 498A and 406 of the IPC.

In response, the Appellant pronounced a triple talaq on September 25, 2017, and sought a divorce, which was granted ex parte with a divorce certificate issued on September 28, 2017. The Appellant attempted to send INR 15,000 for maintenance during the iddat period, which Respondent refused. She then petitioned for interim maintenance under Section 125(1) of CrPC 1973 before the Family Court, which was allowed on June 9, 2023.

The Appellant sought to quash this order, leading to the High Court of Telangana's order on December 13, 2023, which modified the Family Court's order, reducing the interim maintenance from INR 20,000 to INR 10,000 per month.

Issues:

1. Whether the suit under Section 125 of the CrPC is maintainable?
2. Whether the non-obstante clause in Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, confers overriding authority?

Judgement
1st Issue
Whether the suit under Section 125 of the CrPC is maintainable?
The main contention raised by the appellant is that the suit under Section 125 of the CrPC is not maintainable for a divorced Muslim woman. Instead, it is argued that she should file an application under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This prescribed procedure has not been adhered to in the present case.

In the case of Shri Bhagwan Dutt v. Smt. Kamla Devi (1975), the Court clarified that while the rights provided under Section 125 may or may not be recognized under personal laws applicable to the parties, they exist distinctly and independently alongside secular provisions.

Furthermore, in Fuzlunbi v. K. Khader Vali (1980), the Supreme Court explicitly noted that the enactment of Section 125 of the Code of Criminal Procedure charges the court with a deliberate secular intent to enforce maintenance or its equivalent as a humane obligation. This obligation stems from the State's responsibility for social welfare and is not limited to members of a specific religion or region, but extends to the entire community of women.

In Khatoon Nisa v. State of Uttar Pradesh (2014), a 5-Judge bench ruled that a divorced Muslim woman can seek maintenance under Section 125 of CrPC, even if she does not choose the remedies outlined in Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The court observed that several rulings of the Supreme Court have consistently emphasized that Section 125 of the Code of Criminal Procedure, 1973 serves as a tool for social justice aimed at safeguarding vulnerable sections of society, irrespective of the personal laws applicable to the parties involved. These interpretations are rooted in Articles 15(3) and 39 of the Constitution of India.

Article 15(3) is a fundamental right, while Article 39 is a Directive Principle of State Policy that is essential for the governance of the country. It is the state's duty to apply these principles when making laws. Therefore, the statutory right to seek maintenance under Section 125 of the CrPC is rooted in the text, structure, and philosophy of the Constitution. Article 15(3), in conjunction with Article 39(e), reflects a constitutional commitment to special measures that ensure a life of dignity for women at all stages of life, regardless of their faith.

The remedy of maintenance is a crucial support for destitute, deserted, and deprived women. It undoubtedly embodies the constitutional philosophy of social justice, which aims to free Indian women, including divorced women, from gender-based discrimination, disadvantage, and deprivation.

Therefore, the supreme court in the present case upheld the maintainability of the suit.

2nd issues
Whether the non-obstante clause in Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, confer overriding authority?
Another contention raised by the Appellant was that since the Section 3 and 4 commence with a non-obstante clause. The provisions of the special law will have an overriding effect on any other statute operating in the same field.

The court observed that Muslim Women (Protection of Rights on Divorce) Act, 1986 only grants right to maintenance to those women who comes under the definition of "divorced women" as per the Act which states that "divorced woman" is a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law.

Therefore, it does not include those Muslim women who are not married as per the Muslim Law, whereas, the section 125 of the code of criminal procedure grants right to maintenance to all divorced women, irrespective of the religion.

The court observed that the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision since 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, unlike the Muslim Law.

As far as the non-obstante nature of the provision is concerned, the court held that 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 Aswini Kumar Ghosh v. Arabinda Bose, (1952), the Supreme Court observed that only when there's a conflict between a provision and a non-obstante clause, the non-obstante clause will prevail.

Since there's no conflict between both the provisions, rather the provision of secular law is merely an addition to the personal law, the court held that the non-obstante clause in Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not confer overriding authority.

Impact of the judgment
While this judgment is being viewed as positive step forward, some organisations like AIMPLB are opposing and criticising the judgment, according to them, the courts should avoid applying the provisions of IPC and CrPC in such a way that contradicts the personal law. This can be the major drawback of the judgement, that is, the overlap between personal laws and secular laws. It can create legal complexities, requiring clear guidance from courts to ensure uniform application and interpretation.

On the positive side, many individuals favour the judgment as a progressive step towards societal advancement. Over the years, various high court rulings have created ambiguity regarding the issue of maintenance for Muslim women. This Supreme Court verdict aims to eliminate that ambiguity and provide clarity. The court clarified the following issues in its judgment:

The court's judgment provides the following clarifications:

• Section 125 of the CrPC applies to all married women, including Muslim married women.
• Section 125 of the CrPC applies to all non-Muslim divorced women.
• Regarding divorced Muslim women:
  1. Section 125 of the CrPC applies to Muslim women who are married and divorced under the Special Marriage Act, in addition to the remedies available under the Special Marriage Act.
  2. For Muslim women married and divorced under Muslim law, both Section 125 of the CrPC and the 1986 Act are applicable. These women can choose to seek remedies under either or both laws, as the 1986 Act is an addition to, not a derogation of, Section 125 of the CrPC.
  3. If a divorced Muslim woman seeks maintenance under Section 125 of the CrPC, any order passed under the 1986 Act must be considered under Section 127(3)(b) of the CrPC.
• A divorced Muslim woman, as defined under the 1986 Act, can file an application under the 1986 Act, which will be disposed of in accordance with that enactment.
• In cases of illegal divorce under the provisions of the 2019 Act:
  1. Relief under Section 5 of the 2019 Act can be sought for subsistence allowance, or, at the woman's option, she can seek remedy under Section 125 of the CrPC.
  2. If a Muslim woman is 'divorced' during the pendency of a petition filed under Section 125 of the CrPC, she can either continue with Section 125 or file a petition under the 2019 Act.
  3. The 2019 Act provides an additional remedy and does not derogate from Section 125 of the CrPC.

The Honourable Supreme Court has applied the doctrine of harmonious construction, which suggests that courts should interpret provisions to avoid direct conflicts and harmonize them. Courts should ensure that one provision does not nullify another unless no other reasonable interpretation is possible. If an irreconcilable conflict arises, courts must decide in a way that gives effect to both provisions.