Divorced Muslim woman entitled to seek maintenance under Sec 125 CrPC: Supreme Court

New Delhi: The Supreme Court on Wednesday said any discrimination against Muslim women in matters of alimony under the secular laws of the country would be regressive and against gender justice, and equality as it held that a divorced Muslim woman is entitled to seek maintenance from her husband under Section 125 of the Criminal Procedure Code (CrPC).

A bench of Justices B V Nagarathna and Augustine George Masih rejected a contention the Muslim Women (Protection of Rights on Divorce) Act, 1986, enacted after the Shah Bano judgment, will prevail over the secular law.

The court also did not agree to a plea that the provisions of Section 125 of the CrPC do not apply in view of there being a personal law for Muslims.

It declared that Section 125 of the CrPC applies to all married women including Muslim married women and it applies to all non-Muslim divorced women.

It said the provision 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," the bench said.

Justice Nagarathna, in her judgment, held that Section 125 of the CrPC cannot be excluded from its application to a divorced Muslim woman irrespective of the law under which she is divorced.

“There cannot be disparity in receiving maintenance on the basis of the law under which a woman is married or divorced. The same cannot be a basis for discriminating a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the CrPC or any personal or other law such as the 1986 Act," she wrote.

Justice Masih also wrote a separate but concurring judgment.

Justice Nagarathna said, maintenance is a facet of gender parity and enabler of equality, not charity. A destitute Muslim woman has the right to seek maintenance under Section 125 of the CrPC despite the enactment of the 1986 Act, she said.

The court emphasised that the rights granted to a Muslim woman under the 1986 Act to receive a reasonable and fair provision and maintenance from her former husband during the ‘iddat’ (grieving period) are in addition to, not in derogation of, those under Section 125 of the CrPC.

The court held a divorced Muslim woman is entitled to seek recourse to either or both the provisions.

The court also noted that Section 125 of the CrPC is a more beneficial provision for a Muslim divorced woman as compared to the provisions of the 1986 Act.

“This court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not a minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity. It follows that a destitute Muslim woman has the right to seek maintenance under Section 125 of the CrPC despite the enactment of the 1986 Act,” it noted.

In its decision, the apex court stressed women cannot be subjected to discriminatory practices based on their religion and that they have the same legal recourse available to women of other faiths.

The matter emanated from a special leave petition filed by Mohd Abdul Samad against the Telangana High Court's order of December 13, 2023. The appellant contended in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is not entitled to maintain a petition under Section 125 of the CrPC.