Source:   Supreme Court 

Why in News?

The Supreme Court's recent ruling in the matter of Mohd Abdul Samad v. The State of Telangana & Anr. reaffirms that Muslim women divorced through triple talaq can seek maintenance under Section 125 of the Criminal Procedure Code, 1973(CrPC) alongside provisions of the Muslim Women (Protection of Rights on Marriage) Act 2019.  

• The decision clarifies that Section 125 applies universally to provide maintenance to all married and divorced Muslim women, emphasizing their right to pursue remedies under both civil and criminal laws. 

What was the Background of Mohd Abdul Samad v. The State of Telangana & Anr. Case? 

• Mohd Abdul Samad (the Appellant) (husband) and Respondent No. 02 (wife) got married on 15th November 2012. 
• Their relationship deteriorated, and the wife left the matrimonial home on 09th April 2016. 
• The wife (Respondent No. 02) filed an FIR (No. 578 of 2017) against the husband under Sections 498A and 406 of the Indian Penal Code, 1860. 
•  In response to the criminal complaint, the husband pronounced triple talaq on 25th September 2017. 
• He then approached the office of Quzath for a declaration of divorce. 
• The divorce was granted ex parte, and a divorce certificate was issued on 28th September 2017. 
• The husband claims he attempted to send Rs. 15,000 as maintenance for the iddat period, which the wife allegedly refused. 
• The wife filed a petition for interim maintenance under Section 125(1) of CrPC before the Family Court. 
• On 09th June 2013, the Family Court allowed the wife's petition for interim maintenance. 
• The husband approached the High Court of Telangana to quash the Family Court's order. 
• On 13th December 2023, the High Court modified the Family Court's order, reducing the interim maintenance from Rs. 20,000 per month to Rs. 10,000 per month. 
• The husband has now appealed to the Supreme Court challenging the High Court's order dated 13th December 2023. 
• Main Contentions of the Appellant (Husband) is Section 125 of CrPC does not apply due to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 
•  A "divorced Muslim woman" should file an application under Section 5 of the 1986 Act rather than seeking maintenance under Section 125 of CrPC 1973. 

What were the Court’s Observations? 

• 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. 
• Insofar as divorced Muslim women are concerned, - 
  • 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. 
  • 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. 
  • 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. [This means that if any maintenance has been given to Muslim wife under the personal law, then it shall be taken into account by the Magistrate to alter the maintenance order under Section 127(3)(b)] 
• In case of an illegal divorce as per the provisions of the 2019 Act then, 
  • 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. 
  • 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. 
  • The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC. 

What is Section 125 of CrPC? 

• About: 
  • This section deals with the order for maintenance of wives, children and parents. 
• BNSS: 
  • Section 144 deals with Order for maintenance of wives, children and parents. 
• Purpose:  
  • Provides maintenance to dependents 
  • Prevents vagrancy and destitution 
  • Secular provision applicable to all religions 
• Eligible Claimants:  
  • Wife (including divorced wife who hasn't remarried) 
  • Legitimate or illegitimate minor children 
  • Adult children with physical/mental disabilities 
  • Parents unable to maintain themselves 
• Conditions for Maintenance:  
  • Claimant unable to maintain themselves 
  • Person ordered has sufficient means 
  • Neglect or refusal to maintain the claimant 
• Authority:  
  • First Class Judicial Magistrate 
• Maintenance Amount:  
  • Monthly allowance 
  • Rate determined by Magistrate based on circumstances 
  • No maximum limit specified in law 
• Payment Details:  
  • Payable from the date of order or application 
  • Magistrate can direct payment to specific person 
• Interim Maintenance:  
  • Can be ordered during pendency of proceedings 
  • Includes expenses of the proceeding 
  • Application to be disposed of within 60 days if possible 
• Enforcement:  
  • Warrant for levying unpaid amount 
  • Imprisonment up to one month for non-compliance 
  • Separate punishment for each month's default possible 
• Exceptions:  
  • Wife living in adultery 
  • Wife refusing to live with husband without sufficient reason 
  • Couple living separately by mutual consent 
• Special Provisions:  
  • Father may be ordered to maintain minor daughter until majority if husband lacks means. 
  • Magistrate can order maintenance despite husband's offer to maintain wife at his home. 
  • Husband's second marriage or keeping a mistress is just ground for wife's refusal to live with him. 
• Time Limit:  
  • Application for recovery must be made within one year of due date. 
• Definitions:  
  • "Minor" as per Indian Majority Act, 1875. 
  • "Wife" includes divorced woman who hasn't remarried. 
• Alteration of Allowance:  
  • The amount can be increased or decreased based on change in circumstances. 
• Relationship with Personal Laws:  
  • Operates alongside personal laws. 
  • Can provide additional relief even when personal laws are applicable. 
• Recent Interpretations:  
  • Supreme Court has held it applies to Muslim women, even in cases of illegal divorce like triple talaq. 
• Constitutional validity:  
  • Subsection (2) of Section 125 was upheld as constitutional as per Basant Lal v. State of UP, (1998)  
• Nature of proceeding:  
  • Summary in nature 
  • Quasi-civil and quasi-criminal 
  • Does not finally determine rights and obligations 
• Proof of marriage:  
  • Prima facie proof of marriage is sufficient for maintenance claims. 
• Amendment of maintenance amount:  
  • No provision for amending the amount claimed. 
• Interim maintenance:  
  • Initially not provided in the section 
  • Granted by Supreme Court using inherent powers 
  • Now granted by High Courts 
  • Can be granted based on affidavit 
  • Not subject to revision under section 397(2) CrPC 
• Ex parte orders:  
  • Can be reconsidered on husband's application. 
  • Relationship with other proceedings. 
  • Section 210 CrPC not applicable. 
  • Ex parte decree for restitution of conjugal rights not an absolute bar to maintenance claim. 
• Scope:  
  • Operates even when marriage or paternity is denied. 
  • Magistrate can decide on relationship issues. 
  • Order remains operative despite temporary resumption of cohabitation. 
• Grounds for separate living:  
  • Insufficiency of reason for wife to live separately must be established by husband in trial court. 
• Delay in proceedings:  
  • May justify granting maintenance from the date of application. 

What is the Relation Between relationship between Section 125 of CrPC and the Muslim Women (Protection of Rights on Divorce) Act, 1986? 

• Initial Intention:  
  • The 1986 Act was indeed enacted to limit the application of Section 125 CrPC to Muslim women following the Shah Bano case. 
• Supreme Court Interpretation:  
  • However, subsequent Supreme Court judgments have clarified that Section 125 CrPC continues to apply to Muslim women alongside the 1986 Act. 
• Concurrent Application:  
  • The Supreme Court has held that the 1986 Act does not supersede Section 125 CrPC but provides an additional remedy. 
• Choice of Remedy:  
  • Muslim women have the option to seek maintenance under either Section 125 CrPC or the 1986 Act. 
• Non-derogation Principle:  
  • The 1986 Act is considered to be in addition to, not in derogation of, Section 125 CrPC. 
• Section 5 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 
  • Section 5 deals with option to be governed by the provisions of sections 125 to 128 of CrPC.— 
  • It state that if on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly. 

Important Case law  

• Savitaben Somabhai Bhatiya v. State of Gujarat (2005): 
  • The Supreme Court held that Section 125 of the Code of Criminal Procedure, 1973 has been enacted in the interest of a wife and one who wants to take the benefit under sub-section (1)(a) of Section 125 has to establish that she is the wife of the person concerned. 
• Mohd. Ahmed Khan v. Shah Bano Begum (1985): 
  • The Bench of the Supreme Court declared that a Muslim divorced woman who cannot maintain herself is entitled to maintenance from her former husband till the time she gets remarried.