Muslim woman entitled to seek maintenance from spouse

The Supreme Court on Wednesday ruled that a Muslim woman can seek maintenance from her husband under section 125 of the Code of Criminal Procedure (CrPC), which is applicable to all married women irrespective of religion.
Supreme Court
Supreme Court

New Delhi | The Supreme Court on Wednesday ruled that a Muslim woman can seek maintenance from her husband under section 125 of the Code of Criminal Procedure (CrPC), which is applicable to all married women irrespective of religion.

A bench of Justices BV Nagarathna and Augustine George Masih, which pronounced a separate but concurrent verdict, said section 125 of the erstwhile CrPC which deals with wife's legal right to maintenance, covers Muslim women.

"We are hereby dismissing the criminal appeal with the major conclusion that section 125 would be applicable to all women and not just married women," Justice Nagarathna said while pronouncing the verdict.

The bench said maintenance is not charity but the right of married women and it is applicable to all married women irrespective of their religion.

The top court dismissed the petition of one Mohd Abdul Samad, who has challenged the order of the Telangana High Court refusing to interfere with the maintenance order of the family court.

He has contended that a divorced Muslim woman is not entitled for maintenance under Section 125 of CrPC and has to invoke the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The bench had reserved its verdict on February 19 after hearing senior advocate Wasim Qadri for the petitioner. It had appointed advocate Gaurav Agarwal as amicus curiae in the matter to assist the court.

Qadri had submitted that the 1986 Act is more beneficial to Muslim woman as compared to Section 125 of the CrPC.

On December 13, 2023, the high court did not set aside the direction of the family court for payment of interim maintenance by Samad to his estranged wife but reduced the amount from Rs 20,000 to Rs 10,000 per month, to be paid from the date of petition.

Samad contended before the high court that they got divorced in accordance with personal laws in 2017 and there was a divorce certificate to that effect, but it was not considered by the Family Court, which ordered for payment of interim maintenance.

Aggrieved by the high court's order, Samad approached the top court.

SC verdict on maintenance to Muslim women brings back memories of 1985 Shah Bano case

New Delhi | The Supreme Court, which on Wednesday held that a Muslim woman can seek maintenance from her husband under Section 125 of the CrPC, brought back memories of the landmark Shah Bano Begum case of 1985.

The contentious issue of Muslim women getting maintenance under secular provision of section 125 of CrPC had taken centre stage of political discourse in 1985 when a Constitution bench in Mohd Ahmed Khan versus Shah Bano Begum case in a unanimous decision had ruled that Muslim women were also entitled to maintenance.

The verdict had resulted in a controversy with regard to the true obligations of a Muslim husband to pay maintenance to his divorced wife, particularly beyond the 'iddat' period (three months).

The verdict created a nationwide furore. The then Rajiv Gandhi-led central government fielded the then Union minister, Arif Mohammad Khan, to defend the verdict in Parliament.

However, the strategy backfired as the Muslim clergy and Muslim Personal Law Board vehemently protested the verdict. The Rajiv Gandhi government did a volte face and fielded another minister, Z A Ansari, to oppose the Supreme Court judgment. This irked Khan and he quit the government.

Khan presently is the governor of Kerala.

As an attempt to "clarify" the position, the Rajiv Gandhi government subsequently brought the Muslim Women (Protection of Rights on Divorce) Act of 1986 which sought to specify the entitlements of such a woman at the time of divorce.

The constitutional validity of the 1986 Act was upheld by the apex court in the 2001 case of Danial Latifi.

The landmark judgment in the Shah Bano case interpreted the personal law and also dwelt on the need for a Uniform Civil Code (UCC) to address the issue of gender equality.

It laid the foundation for equal rights for Muslim women in matters of marriage and divorce.

Bano had initially approached the court for maintenance from her divorced husband who had granted her 'talaq' (divorce).

The legal battle, which started at a district court, ended with the famous judgment by a five-judge Constitution bench of the apex court in 1985.

In its verdict delivered on Wednesday, a bench of justices B V Nagarathna and Augustine George Masih noted that the Shah Bano judgment had extensively dealt with the issue of maintenance apropos the obligation of a Muslim husband to his divorced wife who is unable to maintain herself, either after having been given divorced or having had sought one.

"The bench (in Shah Bano case) unanimously went on to hold that the obligation of such a husband would not be affected by the existence of any personal law in the said regard and the independent remedy for seeking maintenance under Section 125 of CrPC 1973 is always available," the bench noted.

It said the Shah Bano verdict also went on to observe that, even assuming, there is any conflict between the secular and personal law provisions in regard to maintenance being sought by a divorced wife, section 125 of CrPC will have an overriding effect.

The bench said the 1985 verdict explained that the wife has been conferred with the right to refuse to live with her husband who has contracted another marriage, let alone three or four other marriages.

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