2024 (7) TMI 1728 - SC - Indian Laws

Section 125 CrPC applies to Muslim wives; divorced Muslim women can choose between CrPC and 1986 Act

SC dismissed the criminal appeal, upholding the maintainability of a petition under Section 125 CrPC by a Muslim woman and the interim maintenance ... Maintainability of petition under Section 125 CrPC - Decrease of quantum of interim maintenance payable - seeking a declaration of divorce - prime contention of the Appellant while moving this Court is that the provisions of Section 125 of CrPC 1973 do not prevail in light of the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 - rights guaranteed under personal law to a divorced Muslim woman through Section 3 of the 1986 Act - conflict between the provisions while interpreting the provisions of the 1986 Act vis-à-vis CrPC 1973 - concurring judgements by two judges - HELD THAT:- What emerges from separate but concurring judgments are the following conclusions: 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. Option lies with the Muslim divorced women 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 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC. d) The 1986 Act could be resorted to by a divorced Muslim woman, as defined under the said Act, by filing an application thereunder which could be disposed of in accordance with the said enactment. e) In case of an illegal divorce as per the provisions of the 2019 Act then, 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’ then she can take recourse under Section 125 of the CrPC or file a petition under the 2019 Act. iii) The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC. The criminal appeal is dismissed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the remedies provided under the Muslim Women (Protection of Rights on Divorce) Act, 1986 exclude or override the remedy of maintenance under Section 125 of the Code of Criminal Procedure, 1973 for a divorced Muslim woman. 1.2 Effect of the non-obstante clauses in Sections 3, 4 and 7 of the 1986 Act on the applicability of Section 125 CrPC, in light of constitutional principles and prior precedents. 1.3 Manner in which payments or settlements made under Muslim personal law/1986 Act interact with an order of maintenance under Section 125 CrPC, particularly under Section 127(3)(b) CrPC, to avoid 'double benefit'. 1.4 Clarification of the concurrent and optional nature of remedies available to Muslim women (married or divorced) under Section 125 CrPC, the 1986 Act and the Muslim Women (Protection of Rights on Marriage) Act, 2019, and the consequences for pending or future maintenance proceedings. 1.5 Whether the High Court was right in upholding the maintainability of the respondent's petition under Section 125 CrPC and in affirming interim maintenance (with reduced quantum). 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 & 2 - Whether the 1986 Act excludes or overrides Section 125 CrPC for divorced Muslim women; effect of non-obstante clauses Legal framework (as discussed) 2.1 The Court examined Section 125 CrPC (including Explanation (b) defining 'wife' to include a divorced woman who has not remarried) and its preventive, secular and social justice character as a measure to avoid vagrancy and destitution, independent of personal law. 2.2 The Court set out Section 3 of the 1986 Act (fair and reasonable provision and maintenance, mahr/dower and properties) and Section 4 (post-iddat maintenance from relatives/Wakf Board), both commencing with non-obstante clauses. Sections 5 and 7 of the 1986 Act were also considered as 'option' and 'transitional' provisions. 2.3 The Court relied extensively on prior decisions: Shah Bano, Bai Tahira, Fuzlunbi, Danial Latifi, Shabana Bano, Khatoon Nisa, Shamim Bano, Shamima Farooqui, and High Court decisions including Kunhimohammed/Kunhi Moyin and conflicting Allahabad and other High Court rulings. Interpretation and reasoning 2.4 Section 125 CrPC was reiterated as a secular, summary, social-welfare remedy to prevent destitution, applicable to all wives and divorced women irrespective of religion, and existing distinct from and in addition to rights under personal law. 2.5 The Court noted that in Danial Latifi, the 1986 Act was upheld only by reading it in a manner that did not deprive divorced Muslim women of maintenance rights equivalent in substance to those under Section 125 CrPC, and by construing 'reasonable and fair provision and maintenance' under Section 3(1)(a) as extending beyond the iddat period, potentially for the woman's lifetime, subject to remarriage. 2.6 The Court held that the non-obstante clauses in Sections 3 and 4 of the 1986 Act cannot be read as impliedly extinguishing or barring the right under Section 125 CrPC. Non-obstante clauses operate only where there is clear conflict, and must be construed in the light of legislative intent and constitutional norms, not to abrogate pre-existing beneficial remedies without express language. 2.7 It was emphasised that the 1986 Act nowhere expressly bars a divorced Muslim woman from approaching the court under Section 125 CrPC, nor does it provide that Section 125 shall not apply to such women. Parliament did not amend Section 125 CrPC to exclude divorced Muslim women when enacting the 1986 Act. 2.8 The Court rejected the contention that Sections 5 and 7 of the 1986 Act show an intention that claims of divorced Muslim women must lie only under the 1986 Act or that recourse to Section 125 CrPC is conditioned on joint election under Section 5. Section 5 was held to create a consensual option when a proceeding is already instituted under Section 3(2); it does not curtail a divorced woman's independent right to file directly under Section 125 CrPC. 2.9 Section 7 was characterised as a purely transitional provision for pending Section 125/127 applications at the commencement of the 1986 Act, not as a permanent bar to future Section 125 CrPC proceedings by divorced Muslim women. 2.10 The Court underscored that if the 1986 Act were construed to deprive divorced Muslim women of Section 125 CrPC rights available to all other divorced women, it would lead to invidious discrimination on grounds of religion and sex, offending Articles 14, 15(1) and the broader constitutional scheme, as already noticed in Danial Latifi (para 33) and cured there by purposive interpretation. 2.11 The concurring opinion stressed that the non-obstante clause in Section 3(1) was intended to enhance and add to, not curtail, a divorced Muslim woman's rights, and that the 1986 Act is a quasi-personal, beneficial legislation operating 'in addition to and not in derogation of' Section 125 CrPC. Any reading that excludes divorced Muslim women from Section 125 CrPC would be regressive, anti-woman and constitutionally infirm. 2.12 Distinctions between Section 3 of the 1986 Act and Section 125 CrPC were noted: under Section 3, entitlement arises from divorce and covers 'provision' and 'maintenance' independent of the woman's present ability to maintain herself, whereas Section 125 is premised on 'neglect/refusal' and 'inability to maintain herself', and is not contingent on divorce and is open to all women. This reinforced that the two regimes occupy distinct but overlapping domains and can co-exist harmoniously. Conclusions 2.13 The 1986 Act does not supersede, extinguish or bar the remedy under Section 125 CrPC for divorced Muslim women. 2.14 Rights of maintenance under Section 125 CrPC and under Section 3 of the 1986 Act 'parallelly exist in their distinct domains and jurisprudence', requiring harmonious construction; a divorced Muslim woman may avail one or both, subject to adjustment under Section 127 CrPC. 2.15 Any High Court decisions holding that a divorced Muslim woman is confined exclusively to the 1986 Act and cannot claim maintenance under Section 125 CrPC are declared 'bad in law' and not laying down the correct legal position. 2.16 On this basis, the High Court was correct in upholding the maintainability of the respondent's Section 125 CrPC petition, notwithstanding the 1986 Act. Issue 3 - Interaction between payments under personal law/1986 Act and Section 125 CrPC; operation of Section 127(3)(b) CrPC Legal framework (as discussed) 3.1 The Court set out Section 127(3)(b) CrPC, empowering cancellation of a Section 125 order where the divorced woman has received 'the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce'. 3.2 The Court drew upon Bai Tahira, Fuzlunbi, Kunhi Moyin and Danial Latifi to interpret the reach of Section 127(3)(b) and to identify what constitutes a 'reasonable substitute' or 'sufficient' sum under personal/customary law. Interpretation and reasoning 3.3 The Court affirmed that Section 127(3)(b) is intended to prevent 'double payment' but cannot be used to defeat the social purpose of Section 125 CrPC or to treat illusory or nominal payments as extinguishing maintenance rights. 3.4 It was reiterated that sums referred to in Section 127(3)(b) are not confined to mahr/dower or iddat maintenance; they encompass capitalised settlement or alimony 'payable on divorce' under personal/customary law, intended as a genuine substitute for ongoing maintenance and sufficient to prevent destitution. 3.5 Applying the reasoning of Bai Tahira and Fuzlunbi, the Court held that a husband can obtain cancellation or reduction of Section 125 maintenance only upon proof that: (i) he has in fact made the payments or provision required under applicable personal/customary law or under the 1986 Act; and (ii) such payment or provision constitutes a 'reasonable substitute' for maintenance-i.e. bears a rational relation, in quantum and purpose, to the woman's needs, standard of life and the husband's means, and is adequate to secure her livelihood. 3.6 The Court warned that a 'specious amount' given under personal or customary law cannot be used to evade or dilute Section 125 CrPC liability; 'a farthing is no substitute for a fortune nor naïve consent equivalent to intelligent acceptance'. 3.7 Two principal scenarios were identified regarding the sequence of proceedings: (a) First scenario: A divorced Muslim woman first obtains an order of maintenance under Section 125 CrPC and thereafter proceeds under Section 3 of the 1986 Act. If the husband then discharges his full obligations under Section 3 to the satisfaction of the court (ensuring her future maintenance), he may invoke Section 127(3)(b) to seek cancellation (wholly or partly) of the earlier Section 125 order, to the extent of double benefit. (b) Second scenario: A husband first fulfils his obligations under Section 3 of the 1986 Act (or customary/personal law), and the divorced woman subsequently applies under Section 125 CrPC alleging inability to maintain herself. The woman's right to invoke Section 125 remains open. If the husband pleads that earlier provision suffices, he must prove both (i) fulfilment of obligations under personal/statutory law, and (ii) that, in light of such provision, she is able to maintain herself. If he fails, a Section 125 order will not be barred or automatically cancellable under Section 127(3)(b); only the ordinary remedies (appeal/revision/modification) remain open. 3.8 The concurring opinion emphasised that Section 127(3)(b) is a mechanism to adjust maintenance where there is already an order under Section 125 and subsequently an order under the 1986 Act or other personal/customary law; it does not prevent a divorced Muslim woman from first approaching under Section 125 CrPC, nor does it compel her to proceed exclusively under the 1986 Act. Conclusions 3.9 Section 127(3)(b) CrPC operates as a limit on 'double recovery', not as a substantive bar on resort to Section 125 CrPC. It applies only when there is an existing Section 125 order and a sufficient, bona fide 'sum payable on divorce' has been paid under personal/customary law (including the 1986 Act), which genuinely substitutes for maintenance. 3.10 Where a 'reasonable substitute' has been provided under personal or customary law at the time of divorce, a Magistrate or Family Court may reduce maintenance under Section 125 CrPC to avoid double benefit, but only to the extent justified by the adequacy of such prior provision. Issue 4 - Concurrent and optional nature of remedies under Section 125 CrPC, 1986 Act and 2019 Act; clarified legal position Interpretation and reasoning 4.1 The Court restated, in a summarising order, the comprehensive position arising from the two concurring judgments: (a) Section 125 CrPC applies to all married women, including Muslim married women. (b) Section 125 CrPC applies to all non-Muslim divorced women. (c) As regards divorced Muslim women:   (i) Muslim women married and divorced under the Special Marriage Act may invoke Section 125 CrPC in addition to remedies under that Act.   (ii) Muslim women married and divorced under Muslim law can invoke both Section 125 CrPC and the 1986 Act; the option lies with the woman to seek remedy under either or both. The 1986 Act is not in derogation of but in addition to Section 125 CrPC.   (iii) If a divorced Muslim woman (within the definition under the 1986 Act) resorts to Section 125 CrPC, any order under the 1986 Act must be accounted for under Section 127(3)(b) CrPC. (d) A divorced Muslim woman as defined under the 1986 Act may also independently file and pursue an application under the 1986 Act alone. 4.2 The Court also examined Section 5 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which provides for subsistence allowance to a married Muslim woman upon pronouncement of talaq-e-biddat, and held that: (a) Section 5 of the 2019 Act is 'without prejudice' to other laws, thereby preserving the availability of Section 125 CrPC to women upon whom illegal talaq is pronounced. (b) In cases of illegal divorce under the 2019 Act, a Muslim woman may claim subsistence allowance under Section 5 of that Act, or, at her option, proceed under Section 125 CrPC, or both, subject to appropriate adjustment. (c) Where during the pendency of a Section 125 CrPC petition a Muslim woman is 'divorced' (including by a form of talaq covered by the 2019 Act), she may continue under Section 125 CrPC and/or also invoke the 2019 Act. 4.3 The concurring opinion further stressed that exclusions from Section 125 CrPC based on religion or form of marriage/divorce would violate Article 15(1) and be inconsistent with Article 15(3) and Article 39(e). Maintenance rights are a facet of gender justice, equality and access to justice, not a charity. Conclusions 4.4 Section 125 CrPC remains fully applicable to Muslim women-married, divorced under Muslim law, or divorced under the Special Marriage Act-without any bar derived from the 1986 Act or the 2019 Act. 4.5 Remedies under the 1986 Act and the 2019 Act are additional and not substitutive; they coexist with Section 125 CrPC, with Section 127 CrPC serving to adjust overlapping monetary entitlements. 4.6 There cannot be disparity in maintenance rights among divorced Muslim women based solely on the law under which they were married or divorced; Section 125 CrPC protection is uniform and cannot be excluded for any class of divorced Muslim women. Issue 5 - Validity of High Court's order upholding maintainability and interim maintenance Interpretation and reasoning 5.1 Applying the above principles, the Court held that the respondent, as a divorced Muslim woman, was entitled to invoke Section 125 CrPC; her petition was maintainable notwithstanding the existence of the 1986 Act. 5.2 The High Court had correctly rejected the contention that the 1986 Act was an exclusive code barring Section 125 CrPC, and had lawfully entertained and decided the challenge under Section 482 CrPC only to the extent of quantum, ultimately maintaining the grant of interim maintenance (though at a reduced rate). Conclusions 5.3 The High Court's order upholding the maintainability of the Section 125 CrPC petition was affirmed; no legal infirmity was found. 5.4 The criminal appeal was dismissed, and the High Court's order, including the modified interim maintenance of INR 10,000 per month, stood confirmed.