Mohd Abdul Samad vs The State Of Telangana

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – In case of an illegal divorce as per the provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2019, whether relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed:

Held: Yes – In case of an illegal divorce as per the provisions of the 2019 Act then, relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the CrPC could also be availed. [Per Court]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – In case of an illegal divorce as per the provisions of the 2019 Act, during the pendency of a petition filed under section 125 of the CrPC, if a Muslim is ‘divorced’ whether she can take recourse under Section 125 of the CrPC or file a petition under the 2019 Act: Held: Yes – If during the pendency of a petition filed under Section

125 of the CrPC, a Muslim woman is ‘divorced’ then she can take recourse under Section 125 of the CrPC or file a petition under the 2019 Act. [Per Court]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – Whether the provisions of the 2019 Act provide remedy in addition to or in derogation of Section 125 of the CrPC:

Held: The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 of the CrPC. [Per Court] Code of Criminal Procedure, 1973 – s.125 – A measure for social justice:

Held: Numerous decisions of this Court went on to state that Section 125 of CrPC 1973 is a measure for social justice to protect the weaker sections, irrespective of applicable personal laws of the parties, as contemplated through Articles 15(3) and 38 of the Constitution of India – The purpose of Section 125 of CrPC 1973 has been spelt out to prevent vagrancy and destitution of the person claiming rights through invoking the procedure established under the said provision – However, in Inderjit Kaur v. Union of India and Others, it was clarified qua the wife that such a right is not absolute in nature and is always subject to final determination of the rights of the parties by appropriate courts – Further emphasis has also been placed on the expression “unable to maintain herself” and that the burden of proof is on the wife to prove the existence of said circumstances leading to such inability – This is, in addition, to the requirement to establish that the husband has “sufficient means” to maintain her, and is, however, neglecting or refusing to do so. [Paras 12, 13] [Per Augustine George Masih, J.] Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.3 – Comparative dissection:

Held: Under Section 3 of the 1986 Act, the entitlements or rights of a divorced Muslim woman, wider than the ambit of maintenance, arise as against the obligations of her former husband emanating from their divorce – Per contra, under Section 125 of CrPC 1973, a woman seeking maintenance has to establish that she is unable to maintain herself – The right to seek maintenance under Section

125 of CrPC 1973 is invokable even during the sustenance of marriage and, thereby is not contingent upon divorce – Another distinction is related to the time period – While a petition moved under Section 3(2) of the 1986 Act is to be decided in regard to a husband’s liability under Section 3(1) of the 1986 Act within a period of one month, there is no such statutory time frame prescribed under Section 125 of CrPC 1973 – However, there is an obligation to determine the interim maintenance within a period of 60 days while dealing with a petition under Section 125 of CrPC 1973 – Moreover, failure to comply with such order passed under Section 3(2) of the 1986 Act may lead to issuance of a warrant for levying the amount of maintenance as directed under the said order and may also sentence him to imprisonment till the payment is made or for a term which may extend to one year – On the other hand, equivalent non-compliance of an order passed under Section 125 of CrPC 1973 may result in imprisonment for a term of one month or until the payment is made. [Paras 22, 23] [Per Augustine George Masih, J.]

Code of Criminal Procedure, 1973 – s.127(3)(b) and s.125: Held: The most appropriate construction of these secular provisions of CrPC 1973 in regard to the right of maintenance is that the legislature would never intend that an undue benefit is derived after the end of the marital relationship between the parties concerned – Hence, the provision of Section 127(3)(b) of CrPC 1973 would act in the nature of a proviso to the right provided under Section 125 of CrPC 1973 only in such a circumstance where sufficient means of livelihood after the divorce, and the provisions contemplating the future needs of divorced Muslim women, stands provided to the satisfaction of the court concerned. [Para 32] [Per Augustine George Masih, J.]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.3 – A divorced Muslim woman is not restricted from exercising her independent right of maintenance under the secular provision of Section 125 of CrPC:

Held: This Court has clarified the intent of the Parliament by giving beneficial construction to the expressions contemplated under Section 3 of the 1986 Act, particularly, “within iddat period” by observing that the Parliament never sought to restrict the rights of a divorced Muslim woman to iddat period – Rather, by virtue of the introduction of Section 3 of the 1986 Act in this socio-beneficial legislation, the idea was to confer the benefit of maintenance as well as a reasonable and fair provision for the lifetime of a divorced Muslim woman, subject to her remarriage – Adding to this wellexpounded interpretation of the provisions of the 1986 Act, it is hereby pertinent to highlight that a divorced Muslim woman is not restricted from exercising her independent right of maintenance under the secular provision of Section 125 of CrPC 1973, provided she is able to prove the requisites encompassed by the said statute. [Para 32] [Per Augustine George Masih, J.]

Code of Criminal Procedure, 1973 – s.127(3)(b) – The right for seeking cancellation of an order by the husband: Held: There shall arise a couple of peculiar circumstances while considering the right for seeking cancellation of an order by the husband concerned, through an application under Section 127(3)

(b) of CrPC 1973 – The first and settled circumstance is that, when a divorced Muslim woman initially moves a petition under Section

125 of CrPC 1973 and seeks an order for maintenance as against her former husband and only after receiving said entitlements, she chooses to exercise her substantial rights as provided under Section 3 of the 1986 Act, and therein, the husband is also able to fulfil his concerned obligations to the appropriate satisfaction of the court, ensuring her future maintenance – It is then and only then that the husband can invoke and press his claim under Section 127(3)(b) of CrPC 1973 to seek cancellation of an order, if so, passed under Section 125 of CrPC 1973, directing him to provide maintenance to his former wife. [Para 34] [Per Augustine George Masih, J.]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.3 – Where a husband has fulfilled his obligations under Section 3 of the 1986 Act – The divorced Muslim woman subsequently prefers to invoke Section 125 of CrPC, 1973 on the ground of inability to maintain herself:

Held: In a case where a husband has fulfilled his obligations under Section 3 of the 1986 Act or as provided by customary or personal law so followed, and the divorced Muslim woman subsequently prefers to invoke Section 125 of CrPC 1973 on the ground of inability to maintain herself, in such a factual matrix, undeniably, the right to move under this provision is open in favour of a divorced Muslim woman – When a husband opposes resort to Section 125 CrPC 1973, he has to establish that, (a) initial obligations under the customary and/or personal statutory enactments as detailed earlier stands fulfilled by him, and (b) that the wife, in the light of this, is able to maintain herself – However, if the husband fails to sustain the said objection(s) raised during the proceedings initiated under Section 125 of CrPC 1973, and an order is accordingly passed, it would not be inherently barred or liable to be cancelled through an application under Section 127(3)(b) of CrPC 1973 – Nevertheless, other appropriate remedies as provided under the CrPC 1973 or any other law to that effect, shall always be open to be exercised by such a husband to seek setting aside or appropriate modification of an order so passed under Section 125 of CrPC 1973. [Para 35] [Per Augustine George Masih, J.]

Code of Criminal Procedure, 1973 – s.125 – Reasonable substitute – Double benefit:

Held: Undoubtedly, if a “reasonable substitute” has been provided for by the husband as per their personal or customary laws at the time of their divorce, the maintenance provided for by a Magistrate or a Family Court, as the case may be, under Section 125 of CrPC 1973, can be reduced to the extent of deemed double benefit being given to a divorced wife. [Para 36] [Per Augustine George Masih, J.] Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.3 – Secular provision (s.125, CrPC) and personal law (s.3 of 1986 Act) parallelly exist in distinct domains:

Held: Equivalent rights of maintenance ascertained under both, the secular provision of Section 125 of CrPC 1973, and the personal law provision of Section 3 of the 1986 Act, parallelly exist in their distinct domains and jurisprudence – Thereby, leading to their harmonious construction and continued existence of the right to seek maintenance for a divorced Muslim woman under the provisions of CrPC 1973 despite the enactment of the 1986 Act. [Para 37] [Per Augustine George Masih, J.]

Constitution of India – Arts.15(1) and (3) r/w. Art. 39(e) – Code of Criminal Procedure, 1973 – s.125 – Right to maintenance in a constitutional context:

Held: Section 125 of the CrPC is a measure of social justice with a view to protect women and children and is aligned to the salutary object enshrined in Article 15(1) and (3) of the Constitution read with Article 39(e) of the Constitution – Article 15(3) is a fundamental right while Article 39 is a Directive Principle of State Policy that is fundamental in the governance of the country and it is the duty of the State to apply these principles while making the law – Thus, the statutory right to seek maintenance under Section 125 of the CrPC is also 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 – This ought to be irrespective of the faith a woman belongs to – The remedy of maintenance is a critical source of succour for the destitute, the deserted and the deprived sections of women. [Paras 5, 6] [Per B.V. Nagarathna, J. (concurring)]

Code of Criminal Procedure, 1973 – s.125 – Protection of Women from Domestic Violence Act, 2005:

Held: Section 125 of the CrPC is independent of and in addition to maintenance that could be awarded under the Protection of Women from Domestic Violence Act, 2005 which is applicable to an ‘aggrieved woman’ in a ‘shared household’ as defined under the provisions of the aforesaid Act. [Para 7] [Per B.V. Nagarathna, J. (concurring)]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – Provision (s.125, CrPC) is meant to achieve a social purpose:

Held: A reading of Section 125 of the CrPC would indicate that the intention of the said provision is to provide for a speedy remedy and prevent vagrancy by compelling the husband to support the wife – The provision is meant to achieve a social purpose – The reason being, that after marriage, it is the duty of the husband to provide shelter and maintenance to the wife in the Indian context – Particularly, if she is unable to maintain herself – If he neglects or refuses to do so, the wife is legally entitled to enforce the said right by filing a petition under Section 125 of the CrPC irrespective of any other right created in favour of the wife under any other law – Therefore, the passing of the 1986 Act, cannot militate against or dilute the salutary nature of Section 125 of the CrPC – The object of this provision is to save a wife including a divorced woman from deprivation and destitution. [Para 8] [Per B.V. Nagarathna, J. (concurring)]

Code of Criminal Procedure, 1973 – s.127 – Cancellation of order of maintenance:

Held: The crux of these judgments (Fuzlunbi vs. K. Khader Vali and Mohd. Ahmed Khan vs. Shah Bano Begum) is that an order under Section 127 ought to be a reasoned order and shall only allow an order for maintenance to be cancelled if a judge was satisfied that the divorced woman had received a sufficient amount of maintenance under any customary or personal law. [Para 16] [Per B.V. Nagarathna, J. (concurring)]

Interpretation of Statutes – Non-obstante clause – Meaning of: Held: A non-obstante clause is usually appended to a Section in the beginning with a view to give the enacting part of the Section, in case of a conflict, an overriding effect over the provision or Act mentioned in the non-obstante clause – In other words, in spite of the provision or the Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment – Thus, a non-obstante clause is a legislative device used by a Parliament or legislature sometimes to give an overriding effect to what has been specified in the enacting part of a section in case of a conflict with what is contained in the non-obstante clause as stated above. [Para 23] [Per B.V. Nagarathna, J. (concurring)] Interpretation of Statutes – Non-obstante clause, expression “subject to”, expression “notwithstanding anything in any other law”:

Held: A non-obstante clause has to be distinguished from the expression “subject to” where the latter would convey the idea of a provision yielding place to another provision or other provisions to which it is made subject to – The expression “notwithstanding anything in any other law ” in a Section of an Act has to be contrasted with the use of the expression “notwithstanding anything contained in this Act ”, which has to be construed to take away the effect of any provision of that particular Act in which the section occurs but it cannot take away the effect of any other law. [Para 23] [Per B.V. Nagarathna, J. (concurring)]

Interpretation of Statutes – Non-obstante clause – Utility of: Held: The utility of non-obstante clause is where there is a conflict between what is stated in a provision and any other law for the time being in force, or anything else contained in the said enactment – As already noted, only in the case of a conflict, the object is to give the enacting or operative portion of the section an overriding effect, not otherwise – In other words, only in a case of a conflict, a provision in an enactment containing a non-obstante clause, would be given its full operation and what is stated in the non-obstante clause will not be an impediment for the operation of the particular provision in the enactment – This would mean that what is stated in the non-obstante clause would not take away the effect of any provision of the Act which follows the same. [Para 25] [Per B.V. Nagarathna J. (concurring)]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.3 – Section 3(1) begins with a non-obstante clause as, “notwithstanding anything contained in any other law for the time being in force” – Intention of Parliament:

Held: The intent of the Parliament which can be gathered from the use of such a non-obstante clause is to enhance the right of a divorced Muslim woman in addition to what she would have been entitled to under Section 125 of the CrPC – If the intent of the Parliament was otherwise, i.e., to curtail the rights of a divorced Muslim woman then the non-obstante clause would not have found a place in sub-section (1) of Section 3 of the 1986 Act – This is evident from the fact that while enacting the 1986 Act, Parliament did not simultaneously or at anytime thereafter create any bar for a divorced Muslim woman from claiming maintenance under Section

125 of the CrPC and thereby constrain her to proceed to make a claim only under the provisions of the 1986 Act – Neither is there any bar, express or implied under the 1986 Act, to the effect that a divorced Muslim woman cannot unilaterally seek maintenance under Section 125 of the CrPC – One cannot read Section 3 of the 1986 Act containing the non-obstante clause so as to restrict or diminish the right to maintenance of a divorced Muslim woman under Section 125 of the CrPC and neither is it a substitute for the latter. [Para 28] [Per B.V. Nagarathna, J. (concurring)] Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.4: Held: The expression “notwithstanding anything contained in the foregoing provisions of this Act or any other law for the time being in force” in sub-section (1) of Section 4, is indicative of the fact that the Magistrate can order for maintenance of a divorced Muslim woman being entitled to maintenance as per the provisions of the said Act – Further, sub-section (1) of Section 4 takes into consideration the period after the iddat period while sub-section (1) of Section 3 deals with a period which is within the iddat period – This Section is akin to Section 125 of the CrPC for a reasonable and fair provision of maintenance to be made. [Para 29] [Per B.V. Nagarathna, J. (concurring)]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – ss.3, 4 – A divorced Muslim woman is entitled to seek recourse to either or both the provisions:

Held: The rights created under the provisions of the 1986 Act are in addition to and not in derogation of the right created under Section 125 of the CrPC – The non-obstante clause in Sub-section

(1) of Section 3 cannot result in Sections 3 and 4 of the 1986 Act whittling down the application of Section 125 of the CrPC and allied provisions of the CrPC to a divorced Muslim woman – Therefore, if a divorced Muslim woman approaches the Magistrate for enforcement of her rights under Section 125 of the CrPC, she cannot be turned away to seek relief only under Sections 3 and

4 of the 1986 Act as is sought to be contended by the appellant herein – In other words, such a divorced Muslim woman is entitled to seek recourse to either or both the provisions – The option lies with such a woman – The Court would have to ultimately balance between the amount awarded under the 1986 Act and the one to be awarded under Section 125 of the CrPC. [Para 30] [Per B.V. Nagarathna, J. (concurring)]

Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.3 – Where a divorced woman maintains the children born to her: Held: Under Section 3(1)(b) of the 1986 Act, where a divorced woman maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance has to be made and paid by her former husband only for a period of two years from the respective dates of birth of such children and not beyond the said period – However, under Section 125 of the CrPC, there is no such restriction of maintenance to be provided only for a period of two years from the respective dates of birth of such children in the case of a divorced wife – The obligation is until the children attain the age of majority and in terms of the said Section. [Para 40 (iii)] [Per B.V. Nagarathna, J. (concurring)] Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – Section 125 of the CrPC is a more beneficial provision as compared to the provisions of the 1986 Act:

Held: What is of further significance is the fact that by Act 50 of 2001 [by Section 2(i)(a)] w.e.f. 24.09.2001, sub-section (1) of Section 125 of the CrPC has been amended to delete the words “not exceeding 500 rupees in the whole” – By way of this omission, there is no upper limit fixed for payment of maintenance under the said provision – Therefore, Section 125 of the CrPC is a more beneficial provision as compared to the provisions of the 1986 Act vis-à-vis a Muslim divorced woman in the context of the obligations of a former husband and the rights of a divorced Muslim woman – This amendment to Section 125 of the CrPC being subsequent to the enforcement of the 1986 Act, is so significant that it virtually makes Section 3 of the 1986 Act very narrow and insignificant although the expression “provision” under Section 3(1) of the 1986 Act has been broadly interpreted by this Court in Danial Latifi. [Para 40 (v)] [Per B.V. Nagarathna, J. (concurring)] Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – s.3 – Both provisions operate in two separate fields:

Held: If a divorced Muslim woman files an application for maintenance under Section 125 of the CrPC, there is no provision for considering the same under Section 3 of the 1986 Act – The reasons for the same are not far to see: Firstly, Section 125 of the CrPC and Section 3(1) of the 1986 Act operate in two separate fields – The former is a statutory right created, inter-alia, for all divorced women, irrespective of the faith they may belong to or follow – On the other hand, the 1986 Act is in the nature of a personal law which applies to only divorced Muslim women who were married under Muslim law and divorced under the said law. [Para 40(vii)] [Per B.V. Nagarathna, J. (concurring)] Code of Criminal Procedure, 1973 – s.125 – Muslim Women (Protection of Rights on Marriage) Act, 2019:

Held: When divorce is void and illegal, such a Muslim woman can seek remedy under Section 125 of the CrPC. [Para 41] [Per B.V. Nagarathna, J. (concurring)]