Muslim Women Illegally Divorced Through Triple Talaq Can Seek Maintenance Under Section 125 CrPC: SC

It is of huge significance to note that in a very significant development which is certainly most refreshing and most reassuring to note that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Mohd Abdul Samad vs The State of Telangana & Anr in Criminal Appeal No. 2842 of 2024 arising out of Special Leave Petition (Crl.) No. 1614 of 2024 and cited in Neutral Citation No.: 2024 INSC 506 that was pronounced as recently as on July 10, 2024 has minced just no words to hold unambiguously that a Muslim woman who has been illegally divorced by the pronouncement of triple talaq is entitled to seek maintenance from her husband as per Section 125 of the Code of Criminal Procedure. It must be taken into account that this right is in addition to the remedy that has been provided under the Muslim Women (Protection of Rights on Marriage) Act 2019, which specifies clearly that a woman who has been subjected to triple talaq will be entitled to claim subsistence allowance from her husband.

It must be noted that the 2019 Act criminalized the practice of triple talaq which was declared as void by the Apex Court in 2017. We need to also note here that the Bench comprising of Hon’ble Ms Justice BV Nagarathna and Hon’ble Mr Justice Augustine George Masih who authored this notable judgment was deciding the key question pertaining to whether a Muslim woman could take recourse to Section 125 CrPC to seek maintenance. It is really good to note that this key question was answered in the affirmative.

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 2 that, “This appeal challenges the Order dated 13.12.2023 passed in Criminal Petition No. 12222 of 2023 moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC 1973″), whereby the High Court of Telangana modified the Order dated 09.06.2023 passed by the Family Court in M.C No. 171 of 2019. By virtue of disposing of the said petition, the High Court decreased the quantum of interim maintenance payable by the Appellant herein from INR 20,000/- (Rupees Twenty Thousand only) per month to INR 10,000/- (Rupees Ten Thousand only) per month.”

To put things in perspective, the Bench envisages in para 3 that, “As per the Appellant, the brief facts leading to the instant appeal are that the Appellant herein was the husband of the Respondent No. 02. Both the parties entered the matrimonial consortium on 15.11.2012. However, as their relationship deteriorated, Respondent No. 02 left the matrimonial home on 09.04.2016. Subsequently, Respondent No. 02 initiated criminal proceedings against the Appellant by lodging FIR No. 578 of 2017 for offences punishable under Sections 498A and 406 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC 1860″). In response, the Appellant herein pronounced a triple talaq on 25.09.2017 and moved for divorce before the office of Quzath seeking a declaration of divorce, which was eventually granted ex parte, and the divorce certificate was issued on 28.09.2017.”

As we see, the Bench states in para 4 that, “It is further claimed that he attempted to send INR 15,000/- (Rupees Fifteen Thousand only) apropos maintenance for the iddat period, which the Respondent No. 02 is said to have refused. Instead, she moved a petition for interim maintenance under Section 125(1) of CrPC 1973 before the Family Court vide M.C. No. 171 of 2019, which was consequently allowed vide Order dated 09.06.2023. Seeking quashing of the said Order, the Appellant herein moved the High Court of Telangana, eventually leading to passing of the instant Impugned Order dated 13.12.2023.”

Do note, the Bench notes in para 29 that, “Thus, the High Court of Telangana, while modifying the Order(s) of the Family Court, was correct in upholding the maintainability of the petition filed under Section 125 of CrPC 1973 by Respondent No. 02 herein. Therefore, there is no infirmity in its Impugned Order dated 13.12.2023.”

Briefly stated, the Bench states in para 32 that, “Unequivocally, the most appropriate construction of these secular provisions of CrPC 1973 in regard to the right of maintenance is that the legislature would never intend that an undue benefit is derived after the end of the marital relationship between the parties concerned. Hence, the provision of Section 127(3)(b) of CrPC 1973 would act in the nature of a proviso to the right provided under Section 125 of CrPC 1973 only in such a circumstance where sufficient means of livelihood after the divorce, and the provisions contemplating the future needs of divorced Muslim women, stands provided to the satisfaction of the court concerned. To affirm, reliance is placed on paragraph numbers 28 and 29 of the decision in Danial Latifi (supra). From the aforementioned paragraphs, this Court has clarified the intent of the Parliament by giving beneficial construction to the expressions contemplated under Section 3 of the 1986 Act, particularly, “within iddat period” by observing that the Parliament never sought to restrict the rights of a divorced Muslim woman to iddat period. Rather, by virtue of the introduction of Section 3 of the 1986 Act in this socio-beneficial legislation, the idea was to confer the benefit of maintenance as well as a reasonable and fair provision for the lifetime of a divorced Muslim woman, subject to her remarriage. Adding to this well-expounded interpretation of the provisions of the 1986 Act, it is hereby pertinent to highlight that a divorced Muslim woman is not restricted from exercising her independent right of maintenance under the secular provision of Section 125 of CrPC 1973, provided she is able to prove the requisites encompassed by the said statute.”

Most significantly, the Bench comprising of Hon’ble Ms Justice BV Nagarathna in her concurring separate judgment rightly pointed out in para 40 that, “Therefore, the position of law with regard to harmonious interpretation of Sections 125-128 of the CrPC and the 1986 Act can be summarised as under:

i. There cannot be a disparity amongst divorced Muslim women on the basis of the law under which they were married or divorced in the matter of their maintenance post-divorce. The definition of “divorced woman” under the 1986 Act would include only a Muslim woman who has married according to Muslim law but also divorced under that law. But if a Muslim woman has been married under the Special Marriage Act, such a Muslim woman who is divorced, cannot get the benefit of the 1986 Act. Such a Muslim woman, who is divorced, would have to proceed either under the provisions of the Special Marriage Act, 1954 and/or under Section 125 of the CrPC. Therefore, the protective provision of Section 125 ought to remain available to every divorced Muslim woman to avoid the absurd outcome of a section of Muslim women being left remediless under the 1986 Act. As a corollary, it is held that such women who are covered under the 1986 Act are also entitled to the benefit of Section 125 of the CrPC. Further, there can be no bar under the Explanation (b) to Section 125 of the CrPC so as to exclude any Muslim woman who has been divorced or has obtained a divorce from her husband and has not remarried. This is irrespective of the 1986 Act being applicable to only such divorced Muslim woman who qualifies within the definition of divorced woman under Section 2(a) of the 1986 Act.

ii. Section 3 of the 1986 Act provides for a reasonable and fair provision of maintenance to a divorced Muslim woman only on certain terms and conditions within the iddat period by her husband. Once the iddat period expires, the personal law obligation to maintain the divorced Muslim woman by the husband ceases. Per contra, under Section 125 of the CrPC, any divorced wife who has not remarried is entitled to maintenance by her ex- husband who has sufficient means but has neglected or refused to maintain her.

iii. Further, under Section 3(1)(b) of the 1986 Act, where a divorced woman maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance has to be made and paid by her former husband only for a period of two years from the respective dates of birth of such children and not beyond the said period. However, under Section 125 of the CrPC, there is no such restriction of maintenance to be provided only for a period of two years from the respective dates of birth of such children in the case of a divorced wife. The obligation is until the children attain the age of majority and in terms of the said Section.

iv. What is of further significance is the fact that by Act 50 of 2001 [by Section 2(i)(a)] w.e.f. 24.09.2001, sub-section (1) of Section 125 of the CrPC has been amended to delete the words “not exceeding 500 rupees in the whole”. By way of this omission, there is no upper limit fixed for payment of maintenance under the said provision. Therefore, Section 125 of the CrPC is a more beneficial provision as compared to the provisions of the 1986 Act vis-à-vis a Muslim divorced woman in the context of the obligations of a former husband and the rights of a divorced Muslim woman. This amendment to Section 125 of the CrPC being subsequent to the enforcement of the 1986 Act, is so significant that it virtually makes Section 3 of the 1986 Act very narrow and insignificant although the expression “provision” under Section 3(1) of the 1986 Act has been broadly interpreted by this Court in Danial Latifi.

v. I, therefore, hold 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. I also note that although the provisions of the 1986 Act have been upheld by a Constitution Bench of this Court in the case of Danial Latifi, the same would not in any way restrict the application of Section 125 of the CrPC to a divorced Muslim woman.”

vi. Hence, what emerges is that the 1986 Act is not a substitute for Section 125 of the CrPC and nor has it supplanted it and both can operate simultaneously at the option of a divorced Muslim woman as they operate in different fields. As I find no conflict between the provisions of the 1986 Act, which is a piece of legislation in the nature of quasi-personal law insofar as the divorced Muslim wife is concerned and Section 125 of the CrPC which is a statutory provision applicable to women belonging to all faiths therefore the latter cannot be restricted in its operation to divorced Muslim women. I find that if Section 125 of the CrPC is excluded from its application to a divorced Muslim woman, it would be in violation of Article 15(1) of the Constitution of India which states that the State shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth or any of them. Further, our interpretation is consistent with the spirit of Article 15(3) of the Constitution.”

Most rationally, the Bench the Bench comprising of Hon’ble Ms Justice BV Nagarathna in her concurring separate judgment propounds in para 43 that, “In this context, I would like to advert to the vulnerability of married women in India who do not have an independent source of income or who do not have access to monetary resources in their households particularly for their personal expenses. In Indian society, it is an established practice that once a daughter is married, she resides with her husband and/or his family unless due to exigency of career or such other reason she has to reside elsewhere. In the case of a woman who has an independent source of income, she may be financially endowed and may not be totally dependent on her husband and his family. But what is the position of a married woman who is often referred to as a “homemaker” and who does not have an independent source of income, whatsoever, and is totally dependent for her financial resources on her husband and on his family? It is well-known that such an Indian homemaker tries to save as much money as possible from the monthly household budget, not only to augment the financial resources of the family but possibly to also save a small portion for her personal expenses. Such a practice is followed in order to avoid making a request to the husband or his family for her personal expenses. Most married men in India do not realise this aspect of the predicament such Indian homemakers face as any request made for expenses may be bluntly turned down by the husband and/or his family. Some husbands are not conscious of the fact that the wife who has no independent source of finance is dependent on them not only emotionally but also financially. On the other hand, a wife who is referred to as a homemaker is working throughout the day for the welfare of the family without expecting anything in return except possibly love and affection, a sense of comfort and respect from her husband and his family which are towards her emotional security. This may also be lacking in certain households.”

Furthermore, the Bench adds in para 44 that, “While the contributions of such a homemaker get judicial recognition upon her unfortunate death while computing compensation in cases under the Motor Vehicles Act, 1988 vide Kirti vs. Oriental Insurance Co. Ltd., (2021) 2 SCC 166, the services and sacrifices of homemakers for the economic wellbeing of the family, and the economy of the nation, remain uncompensated in large sections of our society.”

What’s more, the Bench then mandates in para 45 that, “Therefore, I observe that an Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife, who does not have an independent source of income, by making available financial resources particularly towards her personal needs; in other words, giving access to his financial resources. Such financial empowerment would place such a vulnerable wife in a more secure position in the family. Those Indian married men who are conscious of this aspect and who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged.”

Finally, the Bench concludes by holding in para 47 that, “Thus, both ‘financial security’ as well as ‘security of residence’ of Indian women have to be protected and enhanced. That would truly empower such Indian women who are referred to as ‘homemakers’ and who are the strength and backbone of an Indian family which is the fundamental unit of the Indian society which has to be maintained and strengthened. It goes without saying that a stable family which is emotionally connected and secure gives stability to the society for, it is within the family that precious values of life are learnt and built. It is these moral and ethical values which are inherited by a succeeding generation which would go a long way in building a strong Indian society which is the need of the hour. It is needless to observe that a strong Indian family and society would ultimately lead to a stronger nation. But, for that to happen, women in the family have to be respected and empowered! In view of the aforesaid discussion, the Criminal Appeal stands dismissed.”

In a nutshell, the Apex Court has made it crystal clear that a Muslim women illegally divorced through triple talaq can definitely seek maintenance under Section 125 CrPC. It thus merits no reiteration that all the Courts including the High Courts must pay heed to what the Apex Court has held in this leading case and act accordingly in similar such cases. No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.