Tuesday, July 16, 2024

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


 

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