Can a Divorced Muslim Woman Claim Maintenance?

The couple married on 15 November 2012. The marriage soured, and on 9 April 2016 the wife left the matrimonial home. She then lodged FIR No. 578 of 2017 against her husband under Sections 498A and 406 of the Indian Penal Code, 1860.

According to the husband, he responded by pronouncing triple talaq on 25 September 2017. He went to the office of the Quzath and sought a declaration of divorce. It was granted ex parte, meaning without the wife taking part, and a divorce certificate was issued on 28 September 2017. He also says he tried to send Rs. 15,000 as maintenance for the iddat period, and that she refused it.

She did not accept that as the end of the matter. She filed for interim maintenance under Section 125(1) CrPC before the Family Court in M.C. No. 171 of 2019. The Family Court allowed her application on 9 June 2023. The husband then moved the High Court of Telangana under Section 482 CrPC (Criminal Petition No. 12222 of 2023). By its order of 13 December 2023, the High Court modified the Family Court's order and cut the interim maintenance from Rs. 20,000 to Rs. 10,000 per month.

The husband still appealed to the Supreme Court. His case rested on three points:

• After the 1986 Act, a divorced Muslim woman has to use that Act and not Section 125 CrPC.
• The 1986 Act is a special law that overrides the general CrPC.
• The correct route was Section 5 of the 1986 Act, which the wife had not taken.

The Court appointed Senior Advocate Gaurav Agrawal as amicus curiae. He argued that the 1986 Act does not expressly or by necessary implication bar Section 125.

The real fight was over the opening words of Section 3 of the 1986 Act: "Notwithstanding anything contained in any other law for the time being in force." The husband read that clause, together with the transitional Section 7, as pushing Section 125 CrPC aside. The Court did not accept that. In her concurring opinion, Justice Nagarathna noted that a non-obstante clause gives the section its overriding effect only where there is a real conflict. At paragraph 28 she wrote: "Neither is there any bar, express or implied under the 1986 Act, to the effect that a divorced Muslim woman cannot unilaterally seek maintenance under Section 125 of the CrPC."

The Court traced the older line of cases. Shah Bano (1985) opened Section 125 to a divorced Muslim wife. Parliament then passed the 1986 Act. In Danial Latifi (2001), a Constitution Bench saved the Act by reading it so that it did not take away the secular right. Later cases such as Shabana Bano, Khatoon Nisa, Shamim Bano and Shamima Farooqui followed that view.

The High Courts were split. A single judge of the Allahabad High Court in Shahid Jamal Ansari had treated the 1986 Act as a complete code on maintenance. The Kerala High Court's Division Bench in Kunhimohammed said the two remedies sit in different domains. The Supreme Court found that reasoning to be in line with Danial Latifi and approved the decision, while recording Shahid Jamal Ansari as not correct law. It also held that High Court decisions standing in contradistinction to its own observations do not lay down the correct position of law and are bad in law. That is why the case law on maintenance of a Muslim wife under CrPC 125 now points one way.

The Court held that the two laws operate in separate fields. Section 125 CrPC is open to a wife who cannot maintain herself, even while the marriage subsists. Section 3 of the 1986 Act gives a divorced Muslim woman a reasonable and fair provision and maintenance to be made and paid within the iddat period, mahr or dower, and the properties given to her. Section 4 turns to her relatives and then the Wakf Board if she cannot maintain herself after iddat. In her separate concurring opinion, Justice Nagarathna put the choice in these words:

Two loopholes were closed:

• The 1986 Act cannot be used as a complete code that forces a divorced Muslim woman out of Section 125 CrPC. The choice lies with her, and the 2019 Act likewise provides a remedy in addition to Section 125.
• The double-benefit check stays. If the husband gave a "reasonable substitute" at divorce under personal or customary law, the Section 125 amount can be reduced to the extent of the double benefit. If she gets orders under both laws, the 1986 Act order is taken into account under Section 127(3)(b).

For an illegal divorce under the 2019 Act, the Court held that she can seek a subsistence allowance under Section 5 of that Act or, at her option, use Section 125 CrPC.

• Gather the records first. Collect the marriage record showing the law under which the marriage was solemnised, since the 1986 Act applies only to a woman married and divorced under Muslim law. Keep the divorce certificate (in this case, the Quzath certificate), any FIR or court orders, and proof of what the husband paid at divorce, whether iddat maintenance, mahr or any lump-sum provision. The judgment places the burden on the wife to prove she is unable to maintain herself. She must also establish that her husband has sufficient means and is neglecting or refusing to maintain her.
• Choose the forum. File before a Magistrate of the first class, or before the Family Court where one has been established for the area under the Family Courts Act, 1984. An application under Section 3(2) of the 1986 Act goes to a Magistrate. She may use either law or both. An application for interim maintenance and expenses should, as far as possible, be disposed of within sixty days from service of notice.
• Enforce the order. If the husband fails without sufficient cause to comply, the Magistrate can issue a warrant for levying the amount due and can sentence him to imprisonment of up to one month or until payment. The application to levy an unpaid amount must be made within one year from the date on which it became due, as the proviso to Section 125(3) says.
• Avoid the mistake that failed here. The husband argued that the 1986 Act shut the door on Section 125, and the Supreme Court rejected it. A husband who opposes a Section 125 claim must establish two things. First, that his obligations under customary or personal law were fulfilled. Second, that the wife is able to maintain herself.