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20th February 2024 (9 Topics)

CrPC remedy not barred by 1986 law’: SC


The Supreme Court is considering the issue of whether Muslim women can file petitions under Section 125 of the CrPC seeking maintenance from their former husbands, in light of the Muslim Women (Protection of Rights on Divorce) Act, 1986, following observations during a hearing on an appeal regarding maintenance payments.

Key-issues discussed

Section 125 of the Code of Criminal Procedure (CrPC) lays down a secular law for the maintenance of wife, child or parents.

  • The Muslim Women (Protection of Rights on Divorce) Act, 1986,enacted in the aftermath of the Shah Bano case judgment, does not say that a divorced Muslim woman cannot file a petition under Section 125 of the CrPC, 1973, seeking maintenance from her former husband.
  • The Court reserved decision on the question as to which of these two laws would prevail.

Muslim Women (Protection of Rights on Divorce) Act, 1986,

  • The Muslim Women (Protection of Rights on Divorce) Act, 1986 Act ("Act") is a special law in the nature of beneficial legislation, which provides way more than what Section 125 CrPC contemplates.
  • Besides maintenance, Section 3 of the Act also deals with mehr, dower and return of property.
  • Under the Act, a "reasonable and fair" provision is also made for the divorced woman's entire life, but the same is not contemplated under Section 125 CrPC.
  • Moreover, if the divorced woman has sufficient means, she cannot file for maintenance under Section 125 CrPC, however, that is the case with Section 3 of the Act.

Important Judgments

  •  In 2013, the Supreme Court restored a family court order, recognising a divorced Muslim woman's right to uphold the Section 125 CrPC petition for maintenance.
  • However, in 2019, Justice Ahsan Amanullah, as a Patna High Court judge, set aside the family court's order rejecting a Muslim woman's plea for maintenance.
  • Justice Amanullah held that a Muslim woman has the option to apply for maintenance under the 1986 Act and the CrPC.
  • He stated it cannot be said that she has been deprived under law because she is a divorced Muslim woman.

The crux of the issue

  • The crux of the issue lies in the case of Shah Bano Begum.
  • The Supreme Court gave a historic verdict in the Mohamed Ahmed Khan vs Shah Bano Begum case in 1985, stating that Section 125 of the CrPC, viewed as a secular provision, applies to Muslim women as well.
  • However, some considered the decision an attack on religious personal laws.
  • The uproar resulted in the enactment of the Muslim Women Act, 1986, limiting the right to maintenance of Muslim women after divorce to 90 days.

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