Supreme Court Judgment on Maintenance for Muslim Women Post Triple Talaq

July 15, 2024

The Supreme Court has ruled 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.

This right is in addition to the remedy provided under the Muslim Women (Protection of Rights on Marriage) Act 2019, which specifies that a woman subjected to triple talaq will be entitled to claim subsistence allowance from her husband.

It is noteworthy that the 2019 Act criminalized the practice of triple talaq, which was declared void by the Supreme Court in 2017.

The bench comprising Justices BV Nagarathna and Augustine George Masih was deciding whether a Muslim woman could take recourse to Section 125 CrPC to seek maintenance. Answering this question in the affirmative, the judgment authored by Justice Nagarathna discussed the rights of women who have been illegally divorced.

When divorce is void and illegal, such a Muslim woman can also seek remedy under Section 125 of the CrPC,” stated Justice Nagarathna.

The judgment specified that in the case of an illegal divorce as per the provisions of the 2019 Act:

i) Relief under Section 5 of the said Act could be availed for seeking subsistence allowance, or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed.

ii)If, during the pendency of a petition filed under Section 125 of the CrPC, a Muslim woman is ‘divorced,’ she can either continue to seek recourse under Section 125 of the CrPC or file a petition under the 2019 Act.

iii) The provisions of the 2019 Act provide remedies in addition to, and not in derogation of, Section 125 of the CrPC.

The Court also held that Muslim women who got married under the Special Marriage Act 1954 are also entitled to invoke Section 125 CrPC.

Conclusions from the Judgment

The conclusions emerging from the concurring judgments of the judges are as follows:

a) Section 125 of the CrPC applies to all married women, including Muslim married women.

b) Section 125 of the CrPC applies to all non-Muslim divorced women.

c) Insofar as divorced Muslim women are concerned:

i) Section 125 of the CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act, in addition to remedies available under the Special Marriage Act.

ii) If Muslim women are married and divorced under Muslim law, then Section 125 of the CrPC as well as the provisions of the 1986 Act are applicable. Muslim divorced women have the option to seek remedy under either of the two laws or both laws. This is because the 1986 Act is not in derogation of Section 125 of the CrPC but in addition to the said provision.

iii) If Section 125 of the CrPC is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of the 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC. [This means that if any maintenance has been given to a Muslim wife under the personal law, it shall be taken into account by the Magistrate to alter the maintenance order under Section 127(3)(b).]

d) In case of an illegal divorce as per the provisions of the 2019 Act:

i) Relief under Section 5 of the said Act could be availed for seeking subsistence allowance, or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed.

ii) If, during the pendency of a petition filed under Section 125 of the CrPC, a Muslim woman is ‘divorced,’ she can either continue to seek recourse under Section 125 of the CrPC or file a petition under the 2019 Act.

iii) The provisions of the 2019 Act provide remedies in addition to, and not in derogation of, Section 125 of the CrPC.

Posted and reproduced in Public Interest by

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