The Supreme Court will decide if divorced Muslim women can seek maintenance after divorce under Section 125 of the Criminal Procedure Code (CrPC). The review will determine whether they have the same rights as women from other communities.
New Delhi: The Supreme Court of India reviewed the petition of Muslim women to claim maintenance from their divorced husbands. The decision on whether the provisions under the Code of Criminal Procedure, 1973 (CrPC), which were highlighted in the landmark Shah Bano case, hold precedence or if the Muslim Women (Protection of Rights on Divorce) Act, 1986, introduced post-Shah Bano to contradict its verdict.
The Supreme Court, on February 9, appointed senior advocate Gaurav Agarwal as amicus curiae. Justices B. V. Nagarathna and Augustine George Masih, who are overseeing this matter, emphasized the court’s interest in benefiting from the insights of an amicus curiae. The case is scheduled for a further hearing on February 19.
Background
The maintenance petition was filed under Section 125 of the CrPC by a divorced Muslim woman. The petitioner’s argument, as presented by senior counsel, suggests that under the 1986 Act, a divorced Muslim woman is not entitled to pursue a maintenance petition under Section 125 of the CrPC. Instead, she should proceed under the specific provisions of the 1986 Act, which, according to the petitioner, offers more benefits to Muslim women compared to the CrPC.
The contention arose from an appeal by Mohd. Abdul Samad, who was directed by a family court in Telangana to pay Rs. 20,000 in monthly maintenance to his ex-wife following a divorce pronounced through triple talaq. Samad’s appeal to the Supreme Court challenges the High Court’s interim maintenance order, arguing that the special provisions of the 1986 Act should supersede the general provisions of Section 125 of the CrPC.
“We find that this court would benefit by having the views of an amicus curiae… Hence, we request Shri Gaurav Agarwal, learned senior counsel, to be appointed as amicus curiae in this case. A set of papers of this case shall be made available by the Registry to Shri Gaurav Agarwal, learned senior counsel,”
the bench said.
The order pointed out that in this petition, the challenge is the filing of a petition under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) by the respondent, a divorced Muslim woman.
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The learned senior counsel appearing for the petitioner submitted that, 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 and has to proceed under the provisions of the aforesaid 1986 Act. It is also submitted that the 1986 Act is more beneficial to Muslim women as compared to Section 125 of the CrPC.
The court was dealing with an appeal by a man, Mohd. Abdul Samad, who had been ordered to pay Rs 20,000 in monthly maintenance to his ex-wife by a family court in Telangana. The woman had moved the family court under Section 125 of the CrPC, stating that Samad had given her triple talaq.
He appealed to the High Court, which, while disposing of the plea on December 13, 2023, said that “several questions are raised that need to be adjudicated” but “directed the petitioner to pay Rs 10,000 as interim maintenance.”.
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The case not only revisits the legal discourse triggered by the Shah Bano case but also examines the implications of the 1986 Act and its effectiveness in protecting the rights of Muslim women post-divorce.
Challenging this, Samad told the SC that the HC had failed to appreciate that the provisions of the 1986 Act, a special Act, will prevail over the provisions of Section 125 of the CrPC.
