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Supreme Court of India seeks clarity on maintenance for divorced Muslim women Personal law vs. CrPC

Delhi (News Trust of India) : The Supreme Court has requested for input from an amicus curiae regarding the topic of maintenance for Muslim women, under either personal law or the Criminal Procedure Code (CrPC). This action comes as a bench comprising Justices B V Nagarathna and Augustine George Masih selected senior counsel Gaurav Agarwal to serve as the amicus curiae for this cause on February 9.

“We find that this court would benefit by obtaining the opinions of an amicus curiae… Hence, we want Shri Gaurav Agarwal, distinguished senior counsel, to be appointed as amicus curiae in this case. A set of papers of this case must be made available by the Registry to Shri Gaurav Agarwal, learned senior counsel,” ruled the bench, scheduling the matter for further hearing on February 19.

The court’s judgment underlined that the petition under scrutiny challenges the filing of a petition according to Section 125 of the Code of Criminal Procedure, 1973 (CrPC) by a divorced Muslim woman. The attorney representing the petitioner contended that, pursuant to the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman cannot file a petition under Section 125 of the CrPC and must instead proceed under the provisions of the aforementioned 1986 Act. It was further stated that the 1986 Act offers more advantageous terms to Muslim women compared to Section 125 of the CrPC.

The issue revolves around an appeal by Mohd. Abdul Samad, who was told by a family court in Telangana to pay Rs 20,000 as monthly support to his ex-wife. The woman had sought the family court under Section 125 of the CrPC, citing triple talaq by Samad. Samad then appealed to the High Court, which, while disposing of the application on December 13, 2023, told him to pay Rs 10,000 as interim maintenance, adding that “several questions are raised which need to be adjudicated.”

Samad, opposing this ruling, claimed before the Supreme Court that the High Court had failed to recognize that the provisions of the 1986 Act, being a special Act, supersede the requirements of Section 125 of the CrPC, which is a general Act. He contended that “the provisions of Section 3 and 4” of the 1986 Act, which begin with a non-obstante clause, take precedence over the provisions of Section 125 CrPC, which lack such a phrase. Consequently, he stated that claims for maintenance by Muslim divorced women under Section 125 of CrPC would not be tenable before the family court, as the Special Act places power on First-Class Magistrates to consider concerns pertaining to Mahr and other sustenance payments.

Section 125 of the CrPC provides that if any person with appropriate means neglects or refuses to maintain their spouse, children, or parents, a magistrate of the first class may, upon proof of such neglect or refusal, require the person to provide a monthly allowance for their maintenance.

As of now, the Supreme Court has not issued any notice regarding Samad’s appeal. It’s worth mentioning that a Constitution bench of the Supreme Court, in its September 2001 verdict in the case Danial Latifi & Another vs Union Of India, maintained the constitutional validity of the 1986 Act, maintaining that its provisions do not infringe Articles 14, 15, and 21 of the Constitution.

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