Supreme Court considers whether divorced Muslim women can apply for maintenance under Section 125

A Muslim man has approached the Supreme Court to challenge a Family court order to grant temporary maintenance to his divorced wife. During the first hearing, the Supreme Court agreed to examine the legal point and question whether a Muslim woman is entitled to entertain the petition under Section 125 of the CrPC.

Section 125 of the Code of Criminal Procedure establishes a secular law for the maintenance of the wife, child or parents.

Read more

Justices BV Nagarathna and Augustine George Masih recently heard the matter and questioned the Family Court order in which a Muslim woman had filed an application under Section 125 of the CrPC seeking maintenance from her husband. The plaintiff pleaded in court and demanded that her husband pay interim maintenance of Rs 20,000 per month.

The family court's order was challenged in the Telangana High Court on the ground that the parties divorced in 2017 under Muslim personal law.

In 2013, the Supreme Court restored a family court order and recognized the right of a divorced Muslim woman to entertain the maintenance application under Section 125 of the CrPC. However, in 2019, Justice Ahsan Amanullah, sitting as a judge of the Patna High Court, overturned the family court's decision to reject a Muslim woman's maintenance application. Justice Amanullah ruled that a Muslim woman has the option to seek maintenance under the 1986 Act and the CrPC. He said it could not be said that she was deprived of the law because she was a divorced Muslim woman.

Fifty percent of the outstanding amount was paid to the plaintiff by January 24, 2024, and the balance by March 13, 2024. In addition, the family court was directed to try to resolve the main case within six months.

The plaintiff's husband approached the Supreme Court arguing that a divorced Muslim woman was not entitled to file a petition under Section 125 of the CrPC. He insisted that she should adhere to the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which he said is more beneficial to Muslim women in terms of maintenance relief.

The petitioner claimed that he paid Rs 15,000 as maintenance to his divorced wife during the stipulated period of seclusion, which is 90 to 130 days after 'iddat' or divorce.

He also challenged his ex-wife's plea to approach the family court under Section 125 of the CrPC as neither party had filed an affidavit violating the CrPC provisions Section 5 of the Muslim Women's Rights on Divorce of Marriage Act of were brought forward in 1986.

After hearing these arguments, the Supreme Court appointed senior advocate Gaurav Aggarwal as amicus curiae to assist the court. The matter will now be heard on February 19, 2024.

The crux of the problem lies in the case of Shah Bano Begum. The Supreme Court gave a historic verdict in 1985 in the case of Mohamed Ahmed Khan v. Shah Bano Begum and held that Section 125 of the CrPC, considered a secular provision, also applies to Muslim women. However, some viewed the decision as an attack on religious privacy laws.

The uproar led to the passage of the Muslim Women Act of 1986, which limited Muslim women's right to maintenance after divorce to 90 days.

The constitutional validity of the law was challenged in the Supreme Court in 2001 in the case of Daniel Latifi and Others v. Union of India. The court confirmed the validity of the special law and clarified that under the 1986 law, a Muslim husband's obligation to maintain his divorced wife is not limited to the Iddat period.

A few years later, in the case of Iqbal Bano v. State of UP et al. (2007), the Supreme Court held that no Muslim woman can entertain a petition under Section 125 of the CrPC. Then, two years later, in the case of Shabana Bano vs. Imran Khan, another bench of the court held that even if a Muslim woman is divorced, she is entitled to maintenance from her husband under Section 125 of the CrPC after the Iddat period expired until she gets married again.

Subsequently, in the case of Shamima Faruqui v. Shahid Khan (2015), the Supreme Court restored the order of the Family Court and again held that a divorced Muslim woman is entitled to grant the CrPC maintenance application under Section 125.

Published by:

Ramesh Sharma

Published on:

February 13, 2024