4 min readNew DelhiFeb 20, 2024 03:09 AM IST
First published on: Feb 13, 2024 at 04:00 AM IST
WOULD A Muslim woman be entitled to claim maintenance from her divorced husband under the Code of Criminal Procedure, 1973 — as was affirmed in the Shah Bano case — or will The Muslim Women (Protection of Rights on Divorce) Act, 1986 — enacted by the Rajiv Gandhi government to nullify the Shah Bano decision — prevail?
The Supreme Court will deal with the question after an amicus curiae appointed by it gives his views on it.
On February 9, a bench of Justices B V Nagarathna and Augustine George Masih appointed senior advocate Gaurav Agarwal as the amicus curiae for the matter.
“We find that this court would benefit by having the views of an amicus curiae… Hence, we request Shri Gaurav Agarwal, learned senior counsel, to be appointed as amicus curiae in this case. A set of papers of this case shall be made available by the Registry to Shri Gaurav Agarwal, learned senior counsel,” the bench said, posting the matter for further hearing on February 19.
The order pointed out that “in this petition, the challenge is the filing of a petition under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) by the respondent divorced Muslim woman. Learned senior counsel appearing for the petitioner submitted that in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is not entitled to maintain a petition under Section 125 of the CrPC and has to proceed under the provisions of the aforesaid 1986 Act. It is also submitted that the 1986 Act is more beneficial to the Muslim woman as compared to Section 125 of the CrPC”.
The court was dealing with an appeal by a man, Mohd. Abdul Samad, who had been ordered to pay Rs 20,000 monthly maintenance to his ex-wife by a family court in Telangana. The woman had moved the family court under Section 125 of the CrPC stating that Samad had given her triple talaq. He appealed to the High Court, which while disposing the plea on December 13, 2023, said that “several questions are raised which need to be adjudicated” but “directed the petitioner to pay 10,000 as interim maintenance”.
Challenging this, Samad told the SC that the HC had failed to appreciate that the provisions of the 1986 Act, a special Act, will prevail over the provisions of Section 125 of CrPC, which is a general Act.
He contended that “the provisions of Section 3 and 4” of the 1986 Act “which starts with non-obstante clause, will prevail over the provisions of Section 125 CrPC, which has no non-obstante clause and as such the application for grant of maintenance by Muslim divorced women under Section 125 of CrPC would not be maintainable before the family court when the Special Act gives jurisdiction to First-Class Magistrate to decide the issue of Mahr and payment of other subsistence allowance under Section 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986”.
Section 125 of the CrPC says that (1) If any person having sufficient means neglects or refuses to maintain — (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself — a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct”.
The SC has not issued any notice on Samad’s appeal.
An SC Constitution bench had in its September 2001 in the case Danial Latifi & Another vs Union Of India, upheld the constitutional validity of the 1986 Act and said that its provisions do not offend Articles 14, 15 and 21 of the Constitution.
The Supreme Court will deal with the question after an amicus curiae appointed by it gives his views on it. 
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