SECTION 143-A NI ACT- DIRECTOR & AR NOT LIABLE?

 

Section 143-A NI Act- Director & AR not liable?

 

The provisions of Section 138 of Negotiable Instruments Act relating to offence for bouncing of cheques have undergone periodical changes and in pursuance thereto Section 143-A is inserted in 2018 in the statute book with a view to accord the opportunity to a complainant to seek recovery up to 20% of the cheque amount as interim compensation, if prima facie case is made out. The authorities in this regard are many and it has already been delved in greatly before in my earlier write ups, however, the recent issue revolve around the fact that if company is an accused and its Director and authorized signatory are arrayed as a party, whether the Director/s or Authorised signatory, shall be liable under the provisions of Section 143-A of Negotiable Instruments Act or not?

The Supreme Court, recently, on July 24^th 2024 had the occasion to deal with the aforesaid issue in a matter reported as 2024 INSC 551 and captioned as SHRI GURUDATTA SUGARS MARKETING PRITHVIRAJ SAYAJIRAO DESHMUKH & ORS arising out of Special leave Petition ( Criminal) No. 8849-8850.

To put the facts in perspective, the Appellant had filed an application under Section 143-A, NI Act against respondent Nos. 1 to 3 seeking interim compensation from the respondents during the pendency of the criminal proceedings before the Judicial Magistrate and the Judicial Magistrate directed each of the respondents to pay 4% of the total cheque amount as interim compensation to the appellant within 60 days. The respondents were also granted extension to pay the interim compensation.

When the interim compensation was not paid, the Appellant had preferred an application under Section 421, CrPC read with Section 143-A(5), NI Act seeking execution of the said order for recovery of interim compensation as if it were a fine. The order of interim compensation was challenged by the respondents before the High Court and the High Court had stayed the operation of the order impugned therein.

 

During the pendency of the above application, the High Court, in a batch of Writ Petitions and Criminal Application dealing with the same issue and the question of law framed for decision was as under:

Whether the signatory of the cheque, authorized by the "Company", is the "drawer" and whether such signatory could be directed to pay interim compensation in terms of section 143A, NI Act leaving aside the company?

The High Court vide its final judgment and order dated 08.03.2023 held that the signatory of the cheque is not a ‘drawer’ in terms of Section 143-A, NI Act and cannot be directed to pay interim compensation under Section 143A.

The basis of judgment of High Court

1.   The High Court had observed that under Section 7 of the Negotiable Instruments Act, the maker of a bill of exchange or cheque is termed the "drawer," and the person directed to pay is called the "drawee." The drawer is the individual who issues the cheque. It was further observed that Sections 138, 143A, and 148 of the NI Act fall under Chapter XVII, which pertains to penalties for the dishonour of certain cheques due to insufficient funds. A plain reading of Section 138 highlights that the drawer must have an account with sufficient funds to cover the cheque. According to the high court, the primary liability under Section 138 is on the drawer, who must ensure that there are adequate funds in the account at the time the cheque is presented. Additionally, the offence under Section 138 is not complete until a demand notice is served on the drawer, emphasizing the drawer's responsibility. In other words, the drawer is considered the principal offender, if the cheque is returned unpaid, subject to meeting of the necessary conditions before and after the cheque is dishonoured.

2.   The general rule of criminal liability was analysed by the High Court and it was noted that general rule in criminal cases are against vicarious liability, thus, if individual are not held criminally liable for the acts of others. However, this principle is subject to exceptions created by specific statutory provisions extending liability to additional parties. No doubt, Section 141, NI Act is one such provision that extends criminal liability for dishonour of a cheque committed by a company to its officers. The Court emphasized that liability under Section 141 arises from the conduct, act, or omission of the person involved, not merely their position in the company. The provision establishes vicarious liability for officers of the company, such as signatories of the cheque, managing directors, or those in charge of its affairs, by legal fiction. Thus, while the drawer of the cheque remains primarily liable, Section 141 broadens liability to include others associated with the company's management, ensuring accountability beyond the drawer alone.

3.  Authorised signatory cannot be equated to the company

The High Court went on to distinguish legal entities and individuals acting as authorized signatories within the framework of the NI Act. It was held that while individuals may sign cheques as authorized representatives of companies, they do not assume legal identity of the company itself. A legal entity, such as a corporation or company, is an artificial creation of the law endowed with rights, duties, and the capacity to sue and be sued independently of the individuals who manage or represent it. The Court emphasized that an authorized signatory, despite acting on behalf of a company, remains distinct as an individual under the law. This distinction is crucial as it clarifies that the actions and obligations undertaken by an authorized signatory are attributable to the company they represent, but do not merge their legal status with that of the company itself. Thus, while an authorized signatory may bind the company, through their actions, they do not transform into a legal entity in the eyes of law.

4.   The High Court on the basis of the principle of statutory interpretation, particularly in relation to Sections 143A and 148 of the NI Act had discussed the dichotomy between interpreting statutes based on their plain language versus applying purposive construction. According to the high court, when the statutory language is clear and unambiguous, it speaks for itself, and there is no need for further interpretation. The natural and ordinary meaning of words should prevail unless the legal context necessitates a different interpretation to align with the legislative intent or to avoid absurd outcomes.

5.   It was also deliberated that legislative intent should guide the interpretation of statutes, with all parts of a statute considered together to discern the overall purpose and by taking into account the legislative objectives and the broader framework of the law. This holistic approach ensures that statutory interpretation remains embedded to the lawmakers' intentions and inconsistencies or injustices that may arise from a literal reading of isolated provisions should be avoided.

6.   A great deal of emphasis was put on as regards the interpretation of the  Section 143A of the Act and without resorting to other rules of interpretation. The term 'drawer' in Section 143A was construed to have a clear and unambiguous meaning, referring specifically to the person who issues the cheque. Referring to the Statement of Objects and Purposes of the Negotiable Instruments (Amendment) Act, 2018, the High Court noted that the purpose of Section 143A is to provide interim relief to payees of dishonoured cheques by imposing liability on the drawer. This aligns with the legislative intent to curb frivolous litigations and expedite resolution of cheque dishonour cases.

7.   According to the High Court, there cannot be inclusion of authorized signatories within the definition of 'drawer'. The legislature specifically targets the drawer of the cheque,as per section 143 A of NI Act,  whether an individual or a company, and does not extend liability to authorized signatories. The High Court underscored that the term 'drawer' carries a specific legal meaning within the NI Act. It highlighted the cases where Courts consistently interpreted 'drawer' to refer strictly to the issuer of the cheque, reinforcing its decision to uphold this interpretation.

The reliance was placed by the high Court on the following judicial precedents:

i. Nazir Ahmad v. King Emperor AIR 1936 Privy Council 253

ii. Central Bank of India v. Ravindra (2002) 1 SCC 367

iii. Noor Mohammed v. Khurram Pasha (2022) 9 SCC 23

 

8.   The High Court, also dealt with the reliance placed upon Aneeta Hada v. godfather travels and tours Pvt. Ltd. (2012) 5 SCC 661  and N. Harihara Krishnan v. J. Thomas, (2018) 13 SCC 663  observed that while Aneeta Hada (supra). No doubt, whereas Aneeta Hada (Supra) underscored the necessity of involving the company as an accused to maintain a prosecution under Section 141 NI Act, but, N. Harihara Krishna (supra) clarified that an authorized signatory is not considered the "drawer" under Section 138 of the NI Act. These judgments guided the High Court in interpreting provisions of the NI Act regarding vicarious liability and the definition of the term "drawer" within the statutory framework.

9.   Hence, the High Court had set aside the order of the ld Judicial Magistrate directing the respondents to pay interim compensation, as per principles of section 143 of Negotiable Instruments Act.

Aggrieved, the appellant had preferred the present appeal before the Supreme Court on the following premises:

(i)     It was submitted that if a Director, Managing Director, Chairman, Promotor of a company can be arrayed as accused under Section 141, NI Act despite not being a signatory to the cheque, then it is only fair that one or more of such individuals be held liable to pay interim compensation.

(ii)     That to provide some relief to the complainant, the provision for interim compensation is contemplated under section 143-A of the Act and it is only fair therefore, that  this be done through payment of interim compensation by the director or any such person in charge of the company. This would be in alignment with the purposes and objectives of the provision.

(iii)       As the company was admitted to CIRP, thus,  it is only the directors who can be directed to pay interim compensation in furtherance of the object of the provision in light of the CIRP proceedings against the company, the payees of the dishonoured cheque cannot be left with no interim relief, thereby defeating the purpose of Section 143- A and causing injustice to the payees already suffering due to the pending litigation.

The Findings of Supreme Court

(i)          The Supreme Court has held in SHRI GURUDATTA SUGARS (Supra)  para no. 28, as under:

 

“28. The High Court's interpretation of Section 7 of the NI Act accurately identified the "drawer" as the individual who issues the cheque. This interpretation is fundamental to understanding the obligations and liabilities under Section 138 of the NI Act, which makes it clear that the drawer must ensure sufficient funds in their account at the time the cheque is presented. The appellants' argument that directors or other individuals should also be liable under Section 143A misinterprets the statutory language and intent. The primary liability, as correctly observed by the High Court, rests on the drawer, emphasizing the drawer's responsibility for maintaining sufficient funds”.

(ii) The Supreme Court in the aforesaid judgment on the aspect of vicarious liability has held as under:

29. The general rule against vicarious liability in criminal law underscores that individuals are not typically held criminally liable for acts committed by others unless specific statutory provisions extend such liability. Section 141 of the NI Act is one such provision, extending liability to the company's officers for the dishonour of a cheque. The appellants' attempt to extend this principle to Section 143A, to hold directors or other individuals personally liable for interim compensation, is unfounded. The High Court rightly emphasized that liability under Section 141 arises from the conduct or omission of the individual involved, not merely their position within the company”.

(iii)     The Supreme Court has also delved on the issue of the distinction between legal entities and individuals acting as authorized signatories and it was held to be crucial. It was held that Authorized signatories act on behalf of the company but do not assume the company's legal identity. This principle, fundamental to corporate law, ensures that while authorized signatories can bind the company through their actions, they do not merge their legal status with that of the company. This distinction supports the High Court's interpretation that the drawer under Section 143A refers specifically to the issuer of the cheque, not the authorized signatories.

(iv)   According to Supreme Court, the principle of statutory interpretation, particularly in relation to Sections 143A and 148, was also correctly applied by the High Court. The Court emphasized that when statutory language is clear and unambiguous, it should be given its natural and ordinary meaning. The legislative intent, as discerned from the plain language of the statute, aims to hold the drawer accountable.

(v)         The appellants' argument for a broader interpretation to include authorized signatories under Section 143A cannot be accepted as it contradicts this principle and would lead to an unjust extension of liability not supported by the statutory text.

(vi)          The reliance by the appellant on Aneeta Hada (Supra), is misplaced and out of context. No doubt, this case underscored the necessity of involving the company as an accused to maintain a prosecution under Section 141, however, it does not support the extension of liability to authorized signatories under Section 143A. The judgment nowhere lays down that directors or authorised signatories would come under the ambit of ‘drawer’ for the purposes of Section 143A.

(vii)   An authorized signatory is not a drawer of the cheque, as established in N. Harihara Krishnan (Supra). This judgment clarified that a signatory is merely authorized to sign on behalf of the company and does not become the drawer. The respondents' interpretation aligns with the principle that penal statutes should be interpreted strictly, particularly in determining vicarious liability. The judgment in K.K. Ahuja (2009) 10 SCC 48  further supports this approach, emphasizing that penal provisions must be read strictly to determine liability.

The Supreme Court in SHRI GURUDATTA SUGARS (Supra) has thus upheld the judgment of high court and concluded in para 35 as under:

35. In conclusion, the High Court’s decision to interpret 'drawer' strictly as the issuer of the cheque, excluding authorized signatories, is well-founded. This interpretation aligns with the legislative intent, established legal precedents, and principles of statutory interpretation. The primary liability for an offence under Section 138 lies with the company, and the company’s management is vicariously liable only under specific conditions provided in Section 141. The appellants' submissions are thus rejected, and the High Court’s judgment is upheld. This decision maintains the clarity and consistency of the law regarding cheque dishonour cases, ensuring that liability is appropriately assigned to the responsible parties under the NI Act. Therefore, the question of law put before this Court is answered in the negative”.

                                  __________

 

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

SECTION 125 CR.P.C AND RIGHTS OF MAINTENANCE OF DIVORCED MUSLIM WOMEN

 

Section 125 Cr.P.C and rights of maintenance of divorced muslim women

 

The matrimonial disputes, more so, relating to maintenance after divorce to a Muslim woman has long been deliberated. Section 125 of Cr.P.C which has come in the statute book and now that corresponds to Bhartiya Nagrik Suraksha Sanhita (BNSS) prescribes maintenance to women. However, in respect of divorced Muslim women, the aspect remained unsettled, ostensibly, particularly, in view of Muslim Women (Protection of Rights on Divorce)

Act, 1986 (hereinafter referred to as the “1986 Act”). The Supreme Court has recently settled the issues while rendering judgment dated 10.07.2024 in a matter captioned as Mohd Abdul Samad Vs State of Telengana & Anr Criminal Appeal No. 1614/2024. The perspective in this regard shall be traced leading to the present judgment, whereby, Supreme Court has held that even a divorced Muslim Women shall be entitled to maintenance from her husband under section 125 of Cr.P.C, irrespective of provisions as contained in 1986 Act.  

                                  FACTS OF THE CASE

The Family Court had granted to the wife of petitioner as monthly maintenance and in appeal before High Court, the payment of monthly maintenance was upheld. However, the Special Leave Petition was still preferred against the said order of granting maintenance by the High Court and that is how it came before the Supreme Court for adjudication. The Special leave Petition was later on treated as appeal for adjudication.

To put it in proper perspective, after leaving the matrimonial home, the respondent wife had lodged F.I.R u/s 498-A and 406 of Indian Penal Code against the husband and in response thereto, the husband had pronounced 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 divorce certificate was issued.

It was claimed by petitioner-husband that maintenance of Rs 15,000/- for the iddat period was refused by the wife and she opted to prefer a petition for interim maintenance under Section 125(1) of CrPC 1973 before the Family Court. It was allowed. The husband had moved the High Court of Telangana, against the order of family court, eventually leading to passing of the order dated 13.12.2023 impugned before the Supreme Court.

CONTENTIONS OF HUSBAND (APPELLANT)

 

(i)          The provisions of Section 125 of CrPC 1973 shall 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”);

(ii)        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, and the correct procedure would be to file an application under Section 5 of the 1986 Act and wife has failed to do so;

(iii)       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;

(iv)       The 1986 Act is a special law and shall prevail over the provisions of CrPC 1973;

(v)         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

 

The appellant relied upon a 3-Judge Bench judgment of Supreme Court in a matter reported as M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation of India and Another (1980) 4 SCC 435 wherein the Supreme Court has held 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. Further reliance was placed on Chennupati Kranthi Kumar v. State of Andhra Pradesh and Others (2023) 8 SCC 251.

 

 

The appellant had emphasized on 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 of Supreme Court 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.

Reliance was also placed on Iqbal Bano v. State of Uttar Pradesh and Another (2007) 6 SCC 785. It was also contended that the transitional provision of Section 7 of the 1986 Act, supersedes and clarity as to the intent of the legislature on prevalence of the 1986 Act and the procedure and rights contemplated therein.

 

Per contra it was submitted that the remedy under a secular statutory provision of Section 125 of Cr.PC 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. The 1986 Act does not in any manner, expressly or by necessary implication, bar the exercise of former remedy. Whether the non obstante clause in Section 3 of the 1986 Act takes away the rights under Section 125 of Cr,PC 1973, was not dealt by this Court therein in Daniel Laitifi (Supra) case.. However, even the observations in paragraph number 33 of the above referred 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.

 

The Supreme Court after having gone through the pleadings and arguments was pleased to consider the historical perspective, the grey areas and went on clarifying the position of law as regards the applicability of secular provision of maintenance under Section 125 of CrPC 1973, as well as the rights guaranteed under personal law to a divorced Muslim woman through Section 3 of the 1986 Act.

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. In order to appreciate the instant provision, Section 125 of Cr.P.C is reproduced as under:

 “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, 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,

 

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.

 

The Supreme Court has noted in its numerous decisions it is held that Section 125 of Cr.PC 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 Supreme Court, for instance has 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.

It is also observed by the Supreme Court that the very  purpose of Section 125 of CrPC 1973 is to prevent vagrancy and destitution of the person claiming rights through invoking the procedure established under the said provision. In Inderjit Kaur v. Union of India and Others (1990) 1 SCC 344, it was clarified relating to wife that 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. The phrase or expression “unable to maintain herself” shall imply 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.

Significantly, the Supreme Court has also referred to the following , while adjudicating the case of Mohd Abdul Samad (Supra)

“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”.

 

 

The Supreme Court has also acknowledged that the enactment of the Family Courts Act, 1984 ( In short “FCA”) 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 was dealt in Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 in light of the question of law at hand. While relying on the earlier mentioned judgments of The Supreme 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”.

 

In view of above, the Supreme Court has concluded as under:

 

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 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 Cr.PC.

                                          

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                                           Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com