Introduction 

• This is a landmark judgment which lays down the applicability of Section 125 CrPC in the light of provisions under Section 5 of Muslim Women (Protection of Rights and Divorce) Act, 1986. 
• This judgment was delivered by a single judge bench comprising of Justice GB Pa 

Facts 

• The parties in this case are Muslims and the application under Section 125 of Criminal Procedure Code, 1973 (CrPC) has been filed by the wife of the opposite party. 
• Also, along with this an application for interim maintenance was also filed. 
• The husband filed an objection to the above on the following grounds: 
  • The petitioner had left the house of her husband by her free will by executing a ‘Khulanama’. 
  • She had relinquished her dower dues and future maintenance from her husband. 
  • He relied on the judgment of the Supreme Court in the case of Savitri w/o Govind Singh Rawat v. Govind Singh Rawat (1985).   
• The Magistrate awarded maintenance in this case. 
• The husband therefore filed revision before the Learned Sessions Judge wherein the Court held that in view of provisions of Muslim Womens (Protection of Rights on Divorce) Act, 1986 the order of Magistrate granting maintenance is not in conformity with law and should therefore be set aside. 
• The Sessions Judge set aside the above order granting maintenance. 
• This order of Sessions Judge is under revision in this case.  

Issue Involved  

• Whether the Muslim Women (Protection of Rights and Divorce) Act, 1986 (MW Act) can be said to have made any change in law so as to exclude the jurisdiction of a Magistrate under Section 125 of CrPC?  

Observations 

• The Court first of all discussed the nature of relief provided under Section 125 CrPC.  
  • The provisions of Section 125 are independent of personal law or any custom governing the parties and the said personal law cannot be imported into Section 125 of the Code. 
  • The right to get maintenance is a distinct statutory right which the legislature has recognized irrespective of the nationality and creed of the parties.  
  • The provisions of Section 125 are not superseded by the personal law or special law of the parties.
• The Court further observed that the MW Act seeks to restore the Muslims personal law of husband’s liability up to the period of iddat and also retains the provisions of Section 125 of CrPC.  
• The Act retains the provisions of Section 125 of CrPC by making it optional on the choice of both the parties. 
  • Section 5 of the Act provides for the option to be governed by the provisions of Section 125 to 128 of CrPC. 
  • The Court observed that the above provision provides that the option has been given to the parties to choose the remedy of Section 125 of CrPC and if that remedy is chosen the proceeding for maintenance would continue under Section 125 to Section 128 of CrPC.  
  • The manner in which the choice is to be exercised is by filing an affidavit or other declaration in writing in such manner as may be prescribed by rules under the Act by both the parties either jointly or separately. 
  • The time prescribed is the date of first hearing of the application under Section 3 (2) of the Act. 
• Therefore, the Court held that the application for maintenance by a divorced Muslim woman must be initiated under Section 3 (2) of the Act and then only choice should be exercised in the manner prescribed. 
• Thus, the Court concluded that a divorced Muslim woman is entitled to maintenance under Section 125 of CrPC only if both the parties exercise their option at the first hearing under Section 3 (2) of the Act as contemplated under Section 5 of the Act and not in any other manner. 
• Thus, the Court held that in the present case the Magistrate had no jurisdiction to grant maintenance. 
• Thus, the revision was dismissed.   

Conclusion 

• The Court in this case held that after the enactment of MW Act a divorced Muslim woman is entitled to maintenance under Section 125 CrPC only if the option is exercised by the parties under Section 5 of the MW Act. 
• It is to be noted that the Supreme Court has recently conclusively held regarding this matter in the case of Mohd. Abdul Samad v. State of Telengana (2024).  
• The Apex Court held in this matter that in case a Muslim woman is married and divorced then Section 125 CrPC as well as the provisions of the MW Act are applicable. The Court conclusively held that the option lies with the Muslim divorced woman to seek remedy under either of the two laws or both laws.