📖 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 (Constitution Bench)

Facts: A Muslim woman, divorced by her husband after more than forty years of marriage, applied for maintenance under section 125 of the Code of Criminal Procedure. The husband contended that under Muslim personal law his obligation was confined to maintenance during the iddat period, that he had paid it and had also deposited the amount of mahr, and that section 125 was therefore excluded.

Held: The Constitution Bench held that section 125 is a provision of general application which cuts across the barriers of religion, and that it applies to a divorced Muslim woman as it applies to any other. Its object is to prevent vagrancy and destitution, and that object is not answered by a payment confined to the iddat period where the woman is unable to maintain herself thereafter. The Court held that the payment of mahr is a payment in consideration of the marriage and is not a payment “on divorce” within the meaning of the provision that permits an order to be cancelled where the whole sum payable under customary or personal law has been received. There is therefore no conflict between section 125 and Muslim personal law; and where a divorced woman is unable to maintain herself, the liability of the former husband under the section continues after the iddat period.

Ratio: Section 125 is a secular provision applying to persons of all religions, including a divorced Muslim woman. Mahr is not a sum payable on divorce that discharges the liability, and the obligation does not end with the iddat period where she cannot maintain herself.

⚠ Why section 5 did not solve the problem

Section 5 permits the parties to opt into the general law, but it requires the consent of both: the woman and her former husband must jointly declare their preference on the date of the first hearing.

A former husband resisting a claim had no reason whatever to give that consent. The option was therefore illusory in the only situation in which it mattered, and the Act as drafted appeared to confine the woman to a provision made within the iddat period.

That is why the construction of the words “reasonable and fair provision and maintenance to be made and paid to her within the iddat period” became the question on which everything turned.

📖 Danial Latifi v. Union of India, (2001) 7 SCC 740 (Constitution Bench)

Facts: The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged on the ground that by confining the liability of the former husband to the iddat period it deprived divorced Muslim women of the protection available to all other women under section 125, and was therefore arbitrary and discriminatory and violated Articles 14, 15 and 21.

Held: The Court upheld the Act but construed it so as to save it. It held that section 3(1)(a) obliges the husband to make and pay, within the iddat period, a “reasonable and fair provision and maintenance”, and that the word provision is distinct from maintenance: it signifies something provided in advance for meeting future needs. The obligation is therefore to make, within the iddat period, a provision extending beyond it for the whole of her future so long as she does not remarry, and it is only the making and payment that must occur within the iddat period, not the period the provision covers. A construction confining the liability to maintenance for the iddat period alone would render the Act arbitrary and violative of Articles 14 and 21, and is to be rejected. Sections 3 and 4, so construed, are valid.

Ratio: The obligation under section 3(1)(a) of the 1986 Act is to make and pay, within the iddat period, a reasonable and fair provision for the woman’s future, extending beyond the iddat period. The Act so construed is constitutional.

📖 Mohd. Abdul Samad v. State of Telangana, decided 10 July 2024

Facts: A Muslim man was directed by a Family Court to pay interim maintenance to his former wife under section 125 of the Code of Criminal Procedure. He contended before the High Court and then before the Supreme Court that, the parties having been divorced under Muslim personal law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was a complete code on the subject and, by virtue of the non-obstante clause in section 3 and the transitional provision in section 7, displaced the general law. The High Courts had differed on the question for more than two decades.

Held: The Court dismissed the appeal and stated the position comprehensively in two separate but concurring judgments. It held that section 125 applies to all married women, including Muslim married women, and to all non-Muslim divorced women. As to divorced Muslim women: where the marriage and divorce were under the Special Marriage Act, section 125 applies in addition to the remedies under that Act; and where they were under Muslim law, both section 125 and the 1986 Act are applicable, the option lying with the woman to seek relief under either law or both. Where she resorts to both, any order made under the 1986 Act is taken into consideration when the general law is applied, so that the liability is adjusted. Where the divorce is illegal under the 2019 Act, she may seek a subsistence allowance under section 5 of that Act or, at her option, the remedy under section 125; and where she is divorced during the pendency of a section 125 petition, she may continue under it or file under the 2019 Act. The provisions of the 2019 Act are in addition to and not in derogation of section 125. The Court observed that maintenance is not charity but a right of married women, and an aspect of gender parity and of the financial security that Article 15(3) read with Article 39 contemplates.

Ratio: The secular remedy and the personal-law remedy are cumulative and not alternative. A divorced Muslim woman may proceed under section 144 of the Sanhita, under the 1986 Act, or under both, and the choice belongs to her; orders under one are adjusted against the other.

The position stated shortly

1. Section 144 of the Sanhita reproduces section 125 of the CrPC, and everything decided about that section applies to it.

2. Shah Bano (1985) held that section 125 is a secular provision applying to a divorced Muslim woman, that mahr does not discharge the liability, and that the obligation does not end with the iddat period where she cannot maintain herself.

3. The 1986 Act entitled her to a reasonable and fair provision and maintenance to be made and paid within the iddat period, with relatives and the Wakf Board liable thereafter, and permitted the parties jointly to opt into the general law under section 5.

4. Danial Latifi (2001) upheld the Act but read it down: the word provision means something provided in advance for future needs, so what must be made and paid within the iddat period is a provision extending beyond it.

5. The 2019 Act made talaq-e-biddat void and punishable and entitles the woman to a subsistence allowance under section 5 and to custody of her minor children under section 6.

6. Mohd. Abdul Samad (2024) held that section 125, now section 144, applies to all married women including Muslim women, and to divorced Muslim women in addition to the 1986 Act.

7. The option lies with the woman to proceed under either law or both; where she proceeds under both, an order under the 1986 Act is taken into account and the liability adjusted.

8. Where the divorce is illegal under the 2019 Act, she may claim a subsistence allowance under that Act or, at her option, under section 144; and where she is divorced during the pendency of a section 144 petition, she may continue under it.

9. The 2019 Act provides a remedy in addition to and not in derogation of the general law.

10. The right ends on remarriage, or on receipt of the whole sum payable under customary or personal law where that amounts to a fair and reasonable provision for her future.