CrPC and Personal laws

Context: Division bench of Supreme Court has held that a Muslim woman is entitled to seek maintenance from her husband under Section 125 of the CrPC, a secular legislation even if they were divorced under religious personal law.

The Governing Personal Laws

About Maintenance: It is an amount payable by the husband to the wife (or wife to husband) who is unable to maintain herself either during the marriage or after divorce. Maintenance should include basic necessities such as food, clothing, and shelter and cover rational needs to lead a normal living and to ensure financial sustenance and wellbeing.

Laws governing Maintenance:

Various laws governing maintenance are:

  • Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 
  • Muslim Women (Protection of Rights on Divorce) Act, 1986 
  • Parsi Marriage and Divorce Act, 1936 Indian Divorce Act, 1869 
  • Special Marriage Act,1954 
  • Criminal Procedure Code, Section 125, 1973.

About Section 125 CrPC: If any person having sufficient means; neglects or refuses to maintain, his wife (including divorced woman who has not remarried) who is unable to maintain herself, and his legitimate or illegitimate child or a child with physical or mental abnormality, a magistrate can pass order to make a monthly allowance for the maintenance of his wife or child.

Reasoning behind the provision of maintenance:

  • It is a statutory right to seek maintenance under Section 125 of the CrPC which is embedded in the text, structure, and philosophy of the Constitution. Article 15(3), read with Article 39(e) manifests a constitutional commitment towards special measures to ensure a life of dignity for women at all stages of their lives.
  • It is supposed to be irrespective of the faith a woman belongs to (in this case a Muslim woman)
  • Maintenance is considered as a critical source of support for the destitute, deserted and deprived sections of women. 
  • Constitutional philosophy of social justice seeks to liberate the Indian wife, including a divorced woman, from the shackles of gender-based discrimination, disadvantage, and deprivation.

Judicial Interpretation in this context:

  • Shah Bano Case (1985): The Supreme Court ruled that a Muslim woman was entitled to maintenance under Section 125 of CrPC, raising controversy and leading to the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986.
  • Danial Latifi Case (2001): The Supreme Court interpreted the 1986 Act in a manner consistent with Section 125 of CrPC. The court held that a Muslim woman is entitled to a reasonable and fair provision and maintenance, and this should be provided during the iddat period and should be sufficient to sustain her for future. Essentially, it upheld that the 1986 Act does not take away the right to maintenance under Section 125 of CrPC beyond the iddat period but ensures a lump sum or appropriate provision for the woman’s future during the iddat period itself.
  • Md. Abdul Samad vs Telangana: A Muslim divorced wife is entitled to maintenance under Section 125 CrPC irrespective of her personal law, moreover, Muslim women, who are divorced through the illegal method of triple talaq, are also entitled to claim maintenance under Section 125 CrPC.

Practice question:

Q. The right to seek Maintenance in India is a 

(a). Constitutional Right

(b). Statutory right

(c). Fundamental right

(d). Natural right

Answer: (b)

Statutory right under various statutes like Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956, Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 125 of CrPC.

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