The Supreme Court in the case of Mohd. Abdul Samad v. The State Of Telangana & Anr. criminal appeal no. 2842 of 2024 held that Section 125 of CrPC as well as the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter 1986 Act) apply to Muslim women who are married and divorced under the Muslim laws. The option lies with the Muslim divorced women to seek remedy under either of the two statutes or both. The Court also held that the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision.

Case details: Mohd. Abdul Samad v. The State Of Telangana & Anr.
Citation: 2024 SCC OnLine SC 1686
Appellants: Mohd Abdul Samad
Respondents: State of Telangana
Coram:-BV Nagarathna, J., Augustine George Masih, J.

Facts of the case and the issues involved:
The brief facts leading to the instant appeal are that the Appellant (the husband) pronounced talaq and moved to seek a declaration of divorce before the Quzath which was eventually granted ex parte. He further attempted to send Rs 15,000/- as maintenance during the iddat period but was refused by the Respondent (the wife). Instead, she moved a petition for interim maintenance under Section 125(1) of CrPC 1973 before the Family Court which was consequently allowed. Seeking quashing of the said Order, the Appellant herein moved the High Court of Telangana. The husband moved before the High Court, seeking quashing of the said Order of the Family Court. The High Court modified the Family Court's order forming the impugned decision. Hence, the present appeal.

Issue Involved:

• Whether the provisions of Section 125 of CrPC 1973 prevail in light of the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986?

Contentions of the Appellant (Husband)
The council for the appellant argued that the provisions of Section 125 of CrPC 1973 do not prevail in light of the enactment of the 1986 Act. a divorced Muslim woman has to apply to Section 5 of the 1986 Act if she seeks to move the court under the secular provision of Section 125 of CrPC 1973, which is not followed in the instant case.

The Appellant relied on the Supreme Court ruling in M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation of India and Another ( (1980) 4 SCC 435) and argued that since the 1986 Act being a special law, it prevails over the provisions of CrPC 1973. Since Sections 3 and 4 of the 1986 Act, commences with a non-obstante clause, it shall have an overriding effect on any other statute operating in the same field. They also contended that Section 7 of the 1986 Act, in an attempt to establish supersedence and clarity as to the intent of the legislature on the prevalence of the 1986 Act.

Findings of the Amicus Curie - Mr Gaurav Agrawal
The Amicus Curie submitted to the honorable court that Section 125 of CrPC 1973 is not foreclosed for a divorced Muslim woman by the enactment of a personal law remedy under Section 3 of the 1986 Act to the limited extent of maintenance, as the latter does not in any manner, expressly or by necessary implication, bar the exercise of former remedy.

He relied on the Supreme Court judgment in Danial Latifi and Another v. Union of India ( (2001) 7 SCC 740 ) wherein the Honorable Court held that a divorced Muslim woman is also entitled to all the rights of maintenance as are available to other equally situated women in the country and an interpretation otherwise would infringe upon the fundamental rights conferred through Articles 14, 15, and 21 of the Constitution.

Justice Augustine George Masih's Analysis
The Hon'ble Justice reiterated that Section 125 of CrPC 1973 is a measure for social justice to protect the weaker sections, irrespective of the personal laws of the parties, as contemplated through Articles 15(3) and 38 of the Constitution of India.

Precedents analysed by Justice Masih
The Supreme Court in Fuzlunbi v. K. Khader Vali and Another ( (1980) 4 SCC 125 (SC)) held that Section 125 CrPC charges the court with a deliberate secular design to enforce maintenance or its equivalent against the humane obligation, which is derived from the State's responsibility for social welfare. The same is not confined to members of one religion or region, but the whole community of womanhood.

The obligation of a husband to maintain his wife, not be affected by the existence of any personal law, and that the independent remedy for seeking maintenance under Section 125 of CrPC 1973 is always available was decided by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum and others ( (1985) 2 SCC 556). After the pronouncement of the aforesaid verdict, a controversy is said to have emerged on the true obligations of a Muslim husband to pay maintenance to his divorced wife, particularly beyond the iddat period. The Parliament, as an attempt to clarify the position, brought about the 1986 Act. Herein, it was sought to specify the entitlements of such a woman at the time of divorce.

After the 1986 Act came into force, a series of writ petitions were moved before this Court challenging its constitutional validity on grounds of being violative of Articles 14, 15, and 21 of the Constitution of India. Section 3, which opens up with a non-obstante clause seeking to override the application of all other existing laws, was carefully perused by this Court in the common verdict rendered on the constitutional validity in the decision in Danial Latifi and Another v. Union of India (supra), the 1986 Act was upheld and was read down to not foreclose the secular rights of a divorced Muslim woman.
 

1. A Muslim husband is liable to make reasonable and fair provisions for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act

The position that the rights under Section 125 of CrPC 1973 would also be accessible to a divorced Muslim woman was substantially reiterated in Shabana Bano v. Imran Khan ( (2010) 1 SCC 666). In the case Khatoon Nisa v. State of Uttar Pradesh and Others (2014) 12 SCC 646), the Hon'ble Supreme Court held that a divorced Muslim woman is entitled to invoke the jurisdiction under Section 125 of CrPC 1973 to seek her right of maintenance even if she does not exercise her choice of election as stipulated under Section 5 of the 1986 Act.

Findings of Justice Mash
The Court made a comparative study of maintenance under the 1986 Act and 125 CrPC.

Under Section 3 of the 1986 Act, the rights of a divorced Muslim woman, arise as against the obligations of her former husband emanating from their divorce, while under Section 125 of CrPC 1973, a woman seeking maintenance has to establish that she is unable to maintain herself and is invokable even during the sustenance of marriage and, therefore is not contingent upon divorce.

Concerning the existence of the non-obstante clause in Sections 3 and 4 of the 1986 Act, it is undoubtedly clarified by the Constitution Benches of this Court that the same cannot promptly be deemed to override any other rights so provided by the enactments of the legislature. Quoting the Danial Latifi case, the Hon'ble Court reiterated 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 the introduction of Section 3 of the 1986 Act 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.

The Hon'ble Court pointed out that it is also not to be a case where a specious amount rendered in favour of a divorced woman following the requirements laid down in the personal law of the parties is utilised to evade the liability under Section 125 of CrPC 1973 or to seek an equivalent reduction in the amount of maintenance to be provided therein. There ought to be a rational nexus between the actual sum of maintenance paid under personal law and the potential of maintenance under the equivalent provision of secular law.

The right of the husband to seek cancellation of an order to provide maintenance, through an application under Section 127(3)(b) of CrPC 1973:-

The husband can seek cancellation when a divorced Muslim woman initially moves a petition under Section 125 of CrPC 1973 and seeks an order for maintenance against her former husband and only after receiving said entitlements, she choose to exercise her substantial rights as provided under Section 3 of the 1986 Act, and therein, the husband is also able to fulfill his concerned obligations to the appropriate satisfaction of the court, ensuring her future maintenance.

In a case where a husband has fulfilled his obligations under Section 3 of the 1986 Act or as provided by personal law so followed, and the divorced Muslim woman subsequently prefers to invoke Section 125 of CrPC 1973 on the ground of inability to maintain herself, to apply Section 127(3)(b) of CrPC 1973 the husband has to establish that, (a) initial obligations under the customary and/or personal statutory stands fulfilled by him, and (b) that the wife, in the light of this, can maintain herself.

If a "reasonable substitute" has been provided for by the husband as per their personal or customary laws at the time of their divorce, the maintenance provided for by a Magistrate or a Family Court, as the case may be, under Section 125 of CrPC 1973, can be reduced to the extent of deemed double benefit being given to a divorced wife.

Decision
Justice Masih held that equivalent rights of maintenance ascertained under both, the secular provision of Section 125 of CrPC 1973, and the personal law provision of Section 3 of the 1986 Act, parallelly exist in their distinct domains and jurisprudence, leading to their harmonious construction and continued existence of the right to seek maintenance for a divorced Muslim woman under the provisions of CrPC 1973 despite the enactment of the 1986 Act.

Concurring Judgement Of Justice Nagaratna
Section 125 of the CrPC is a measure of social justice to protect women and children and is aligned with the objective enshrined in Articles 15(1) and (3) of the Constitution read with Article 39(e) of the Constitution. It manifests a constitutional commitment towards special measures to ensure a life of dignity for women at all stages of their lives. This ought to be irrespective of the faith a woman belongs to.

'The meaning of meanings is derived from values in a given society and its legal system. Article 15(3) has compelling, compassionate relevance in the context of Section 125, and the benefit of the doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorcee.'-- Justice V R Krishna Iyer

Sufficiency of maintenance
Hon'ble Justice Nagaratna relied on the Shah Bano judgment to hold that an order under Section 127 ought to be a reasoned order and shall only allow an order for maintenance to be canceled if a judge was satisfied that the divorced woman had received a sufficient amount of maintenance under any customary or personal law.

She also relied on Kunhi Moyin vs. Pathumma ( 1976 KLT 87) wherein it was held that Section 127(3)(b) does not refer to mahr or dower or the maintenance paid during the iddat period as these are not the sums 'payable on divorce' under the personal law. What was encompassed by the terms was the amount of alimony or compensation paid upon dissolution of marriage under customary or personal law. "Expositing the intent and scheme of Section 125 read with Section 127, it was held that the Parliament did not intend to take away by one hand what is given under Section 125 by the other hand."


'The passing of the 1986 Act, in my view, cannot militate against or dilute the salutary nature of Section 125 of the CrPC. The object of this provision is to save a wife including a divorced woman from deprivation and destitution.'

Interpretation of 1986 Act:
She viewed that the 1986 Act manifests the Parliament's intent to clarify the controversy emerging from the judgment in Shah Bano regarding the obligation of the Muslim husband to pay maintenance to a divorced wife.

Regarding the non-obstante clause, the Hon'ble Justice held a non-obstante clause is a legislative device used by a Parliament to give an overriding effect to what has been specified in the enacting part of a section in case of a conflict with what is contained in the non-obstante clause as stated above. She further observed referring to the SC case in ICICI Bank Ltd. vs. SIDCO Leathers Ltd ( (2006) 10 SCC 452) that even if a non-obstante clause has wide amplitude, the extent of its impact has to be measured in view of the legislative intention and legislative policy.

She reasoned that the non-obstante clause will act only in case of a conflict between what is stated in a provision and any other law for the time being in force, or anything else contained in the said enactment. This would mean that what is stated in the non-obstante clause would not take away the effect of any provision of the Act which follows the same. It is only when the enacting part of the statute cannot be read harmoniously with what is stated in the non-obstante clause, it would result in the overriding effect.

'In my view, the rights created under the provisions of the 1986 Act are in addition to and not in derogation of the right created under Section 125 of the CrPC'

Thus she held that the non-obstante clause in Sections 3 and 4 of the 1986 Act cannot result in whittling down the application of Section 125 of the CrPC and other allied provisions of the CrPC to a divorced Muslim woman.

Regarding the option to be exercised under Section 5 of the 1986 Act, Hon'ble Justice held that the deliberate use of the words 'option' and 'former husband' demonstrates that Section 5 does not statutorily confine the circumstances under which the claim of maintenance of a divorced Muslim woman can be governed under the secular law of maintenance.

Decision
The 1986 Act cannot be interpreted in a manner to restrict the rights of a divorced Muslim woman to other available remedies such as under Section 125 of the CrPC.

Conclusion:
Dismissing the criminal appeal, the Supreme Court unanimously held that Section 125 of the CrPC applies to all married women including Muslim married women, and that the 1986 Act does not override the provisions of Section 125 CrPC rather it is in addition to the secular provision.

Written By: Ananditha S R, 3rd year BA LLB - Government Law College, Thiruvananthapuram, Kerala
Email: [email protected]