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
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