Muslim Women are Entitled to Maintenance After Divorce: Supreme Court

After the Shah Bano Case (1986), when the Supreme Court ruled that the divorced Muslim woman is entitled to maintenance from her husband, various Muslim men stood against it as this judgment allegedly went against their personal code (Sharia’t). The then Prime Minister, Rajiv Gandhi, passed the infamous Muslim Women (Protection of Rights on Marriage) Act 1986, which overturned the Supreme Court’s decision. This was widely criticized by the BJP back then as they accused the Congress of curtailing the rights of women and appeasing the Muslims. The 1986 Act is one of the darkest acts ever passed in the Indian post-independence history.

Supreme Court Overhauls the Act

The Supreme Court overhauling the act in 2024, said that under Code of Criminal Procedure (CrPC) Section 125, the Muslim women are entitled to alimony even if they’re illegally divorced by the practice of “triple talaq”. This judicial activism is an extension to the rights given to Muslim women after the 1986 Act was amended in 2019, which made the practice of triple talaq and nikah halala illegal, in addition to the 2017 Supreme Court judgment where triple talaq was declared unconstitutional. 

Provisions of the Judgement

The Supreme Court reiterated that maintenance is the right of women, regardless of their religion and not a charity. Therefore, if a Muslim woman is divorced illegally, then she can file a case against her husband under CrPC Section 125 and in parallel, seek alimony from him due to the 2019 Act. 

The judgment specified that in cases of an illegal divorce as per the provisions of the 2019 Act, a Muslim woman has the option to seek relief under Section 5 of the said Act for subsistence allowance. Alternatively, she can avail herself of the remedy under Section 125 of the CrPC.

Moreover, if a Muslim woman is ‘divorced’ during the pendency of a petition filed under Section 125 of the CrPC, she can either continue to seek recourse under Section 125 of the CrPC or file a petition under the 2019 Act. The Court clarified that the provisions of the 2019 Act offer a remedy that is in addition to and not in derogation of Section 125 of the CrPC. Additionally, it was held that Muslim women who got married under the Special Marriage Act, 1954 are also entitled to invoke Section 125 of the CrPC.

Conclusions from the Judgement

Section 125 of the CrPC applies to all married women, including Muslim married women, as well as all non-Muslim divorced women. For divorced Muslim women, the applicability is more nuanced. Section 125 of the CrPC applies to those who were married and divorced under the Special Marriage Act, in addition to the remedies available under that Act. For Muslim women married and divorced under Muslim law, both Section 125 of the CrPC and the provisions of the 1986 Act are applicable.

These women have the option to seek remedies under either or both laws, as the 1986 Act is not in derogation of Section 125 but in addition to it. If a divorced Muslim woman also resorts to Section 125, 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 maintenance given under personal law will be considered by the Magistrate when altering the maintenance order under Section 127(3)(b). 

In cases of an illegal divorce as per the provisions of the 2019 Act, relief under Section 5 of the Act can be sought for subsistence allowance, or the woman can opt for the remedy under Section 125 of the CrPC. Additionally, if a Muslim woman is ‘divorced’ during the pendency of a petition filed under Section 125 of the CrPC, she can continue under Section 125 or file a petition under the 2019 Act. The 2019 Act provides remedies that supplement to, and not in derogation of, Section 125 of the CrPC.