‘Religion neutral’: Muslim woman entitled to seek maintenance from spouse under Section 125 of CrPC, says SC

The bench said maintenance is not charity but the right of married women and it is applicable to all married women irrespective of their religion.

BySouth First Desk

Published Jul 10, 2024 | 12:17 PM Updated Jul 10, 2024 | 12:17 PM

Supreme Court

The Supreme Court on Wednesday, 10 July, ruled that a Muslim woman can seek maintenance from her husband under section 125 of the Code of Criminal Procedure (CrPC), which is applicable to all married women irrespective of religion.

A bench of Justices BV Nagarathna and Augustine George Masih, which pronounced a separate but concurrent verdict, said section 125 of the erstwhile CrPC which deals with wife’s legal right to maintenance, covers Muslim women.

“We are hereby dismissing the criminal appeal with the major conclusion that section 125 would be applicable to all women and not just married women,” Justice Nagarathna said while pronouncing the verdict.

The bench said maintenance is not charity but the right of married women and it is applicable to all married women irrespective of their religion.

The top court dismissed the petition of one Mohd Abdul Samad, who has challenged the order of the Telangana High Court refusing to interfere with the maintenance order of the family court.

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The petition

He has contended that a divorced Muslim woman is not entitled for maintenance under Section 125 of CrPC and has to invoke the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Further, the 1986 Act is more beneficial to Muslim women, it was contended.

As reported by the Bar and Bench The matter arose from a family court order that had directed the petitioner to pay interim maintenance of ₹20,000 per month.

This was challenged before the Telangana High Court on the grounds that the couple had gotten divorced as per Muslim personal law in 2017.

The high court modified the maintenance to ₹10,000 per month and directed the family court to dispose of the case within six months.

The petition further noted Section 5 of the act gives an option to the divorced couple to not be governed by the Act. This shows that a Muslim wife cannot resort to both remedies.

Livelaw further reported that Amicus and Senior Advocate Gaurav Agarwal submitted: “The Act only concretizes Muslim personal law. It broadens a divorced Muslim woman’s entitlement to maintenance beyond the iddat period, but does not take away the relief available to her under Section 125 CrPC because the purpose behind the latter is different.”

The Amicus further noted, “The petitioner’s reliance on Section 5 of the Act is misplaced, as that provision comes into play when an application has been filed under Section 3 of the Act. In the present case, the respondent-wife had approached the Court under Section 125 CrPC.”


During the hearing, the bench remarked that Section 3 of the Act begins with a non-obstante clause. They noted it is an additional remedy to 125 CrPC.

Justice Masih said: “There is no statutory provision provided under the Act of 1986 which says that 125 is not maintainable”.

Concurring, Justice Nagarathna said that there was nothing in the 1986 law which barred one remedy in favor of the other.

The Court disagreed with the petitioner’s contention that the terms of the Act reflect Parliament’s desire to prohibit Muslim women from filing maintenance claims under Section 125 CrPC, stating that such an action would be illegal.

If Parliament had intended for divorced Muslim women to lose their right to bring petitions under Section 125 CrPC as of the Act’s commencement date, it could have clearly given the Act an overriding effect, the bench said.

Justice Nagarathna noted, “In the absence of such a thing, can we add a restriction to the Act? That is the point”.

(Edited by Sumavarsha Kandula, with inputs from PTI)

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