The Supreme Court's judgement that the divorced Muslim women are entitled to claim maintenance from their husbands under Section 125 of the Code of Criminal Procedure (CrPC), 1973, irrespective of the personal law, is a reiteration of the apex court's past rulings which have made it clear that the CrPC clause, a secular legal provision, and the Muslim Women (Protection of Rights on Divorce) Act, 1986 can go hand in hand.
The case
The apex court passed the order on a petition filed by one Mohd Abdul Samad who had challenged the order of a family court in Telangana that he should pay Rs 20,000 per month as maintenance to his former wife. The relief was provided to the woman under Section 125 of the CrPC. Samad had moved the Telangana High Court which upheld the family court order, but reduced the maintenance amount to Rs 10,000. The petitioner had argued that the 1986 Act, which is a Special Act, would prevail over the provisions of Section 125 of the CrPC, which is a general Act.
What Section 125 of the CrPC says
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...at such monthly rate as such Magistrate thinks fit...”
Muslim Women (Protection of Rights on Divorce) Act, 1986
Section 3 of the Act deals with the payment of maintenance to a divorced Muslim woman.
It states: “Mahr or other properties of Muslim woman to be given to her at the time of divorce.— (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to— (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;”
The law was enacted by the Rajiv Gandhi government to overturn the Supreme Court's judgment in the Shah Bano case.
A contention also made by those arguing against application of Section 125 of CrPC in case of Muslim women is that the 1986 Act provides for payment of maintenance only during the iddat, which is a period of waiting before a Muslim woman who is divorced can remarry.
How Supreme Court harmonised Section 125 of the CrPC with the 1986 Act
The Supreme Court has through its judgments emphasised on the right of the Muslim woman to get relief under Section 125 of CrPC and has read down Section 3 of the 1986 Act so that the woman is entitled to maintenance even beyond the iddat period.
In Danial Latifi and Another v. Union of India (2001), the court had said the provisions of the 1986 Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC.
The 1986 Act was read down by the court to not foreclose the secular rights of a divorced Muslim woman and to mean that the payment of maintenance cannot be restricted to the period of iddat.
This was further reiterated in Shabana Bano v. Imran Khan (2010) and again in Khatoon Nisa v. State of Uttar Pradesh and Others (2014).
