# Mohd. Abdul Samad v. The State of Telangana & Anr

- **Citation:** 2024 INSC 506
- **Court:** Supreme Court of India
- **Decided:** 2024-07-10
- **Case number:** Criminal Appeal No. 2842 of 2024
- **Bench:** B.V. Nagarathna, Augustine George Masih
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-abdul-samad-v-the-state-of-telangana-anr-38005
- **Pages:** 78

## Headnote

(i) Whether section 125 CrPC applies to all married women including
Muslim married women; (ii) Whether section 125 CrPC applies to
all non-Muslim divorced women; (iii) Whether section 125 of the
CrPC applies to all such Muslim women, married and divorced
under the Special Marriage Act in addition to remedies available
under the Special Marriage Act; (iv) If Muslim women are married
and divorced under Muslim law, whether Section 125 of the CrPC
as well as the provisions of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 are applicable; (v) If Section 125 of
the CrPC is also resorted to by a divorced Muslim woman, as per
the definition under the 1986 Act, whether any order passed under
the provisions of 1986 Act shall be taken into consideration under
Section 127(3)(b) of the CrPC; (vi) 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; (vii) 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; (viii) Whether the provisions
of the 2019 Act provide remedy in addition to or in derogation of
Section 125 of the CrPC.
Headnotes†
Code of Criminal Procedure, 1973 - s.125 - Whether section
125 CrPC applies to all married women including Muslim
married women:
* Author
[2024] 7 S.C.R.
1237
Mohd. Abdul Samad v. The State of Telangana & Anr.
Held: Yes - Section 125 of the CrPC applies to all married women
including Muslim married women. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Whether section
125 CrPC applies to all non-Muslim divorced women:
Held: Yes - Section 125 of the CrPC applies to all non-Muslim
divorced women. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Whether section
125 of the CrPC applies to all such Muslim women, married
and divorced under the Special Marriage Act in addition to
remedies available under the Special Marriage Act:
Held: Yes - Insofar as divorced Muslim women are concerned,
Section 125 of the CrPC applies to all such Muslim women,
married and divorced under the Special Marriage Act in addition
to remedies available under the Special Marriage Act. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Muslim Women
(Protection of Rights on Divorce) Act, 1986 - If Muslim women
are married and divorced under Muslim law, whether Section
125 of the CrPC as well as the provisions of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 are applicable:
Held: If Muslim women are married and divorced under Muslim law
then Section 125 of the CrPC as well as the provisions of the 1986
Act are applicable - Option lies with the Muslim divorced women
to seek remedy under either of the two laws or both laws - This
is because the 1986 Act is not in derogation of Section 125 of the
CrPC but in addition to the said provision. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Muslim Women
(Protection of Rights on Divorce) Act, 1986 - s.127(3)(b) - If
Section 125 of the CrPC is also resorted to by a divorced Muslim
woman, as per the definition under the 1986 Act, whether any
order passed under the provisions of 1986 Act shall be taken
into consideration under Section 127(3)(b) of the CrPC:
Held: Yes - If Section 125 of the CrPC is also resorted to by a
divorced Muslim woman, as per the definition under the 1986 Act,
then any order passed under the provisions of 1986 Act shall be
taken into consideration under Section 127(3)(b) of the CrPC.
[Per Court]
Code of Criminal Procedure, 1973 - s.125 - Muslim Women
(Protection of Rights on Divorce) Act, 1986 - In case of an
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## Text

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[2024] 7 S.C.R. 1236 : 2024 INSC 506
Mohd. Abdul Samad
v.
The State of Telangana & Anr.
(Criminal Appeal No. 2842 of 2024)
10 July 2024
[B.V. Nagarathna* and Augustine George Masih,* JJ.]
Issue for Consideration
(i) Whether section 125 CrPC applies to all married women including
Muslim married women; (ii) Whether section 125 CrPC applies to
all non-Muslim divorced women; (iii) Whether section 125 of the
CrPC applies to all such Muslim women, married and divorced
under the Special Marriage Act in addition to remedies available
under the Special Marriage Act; (iv) If Muslim women are married
and divorced under Muslim law, whether Section 125 of the CrPC
as well as the provisions of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 are applicable; (v) If Section 125 of
the CrPC is also resorted to by a divorced Muslim woman, as per
the definition under the 1986 Act, whether any order passed under
the provisions of 1986 Act shall be taken into consideration under
Section 127(3)(b) of the CrPC; (vi) 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; (vii) 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; (viii) Whether the provisions
of the 2019 Act provide remedy in addition to or in derogation of
Section 125 of the CrPC.
Headnotes†
Code of Criminal Procedure, 1973 - s.125 - Whether section
125 CrPC applies to all married women including Muslim
married women:
* Author
[2024] 7 S.C.R.
1237
Mohd. Abdul Samad v. The State of Telangana & Anr.
Held: Yes - Section 125 of the CrPC applies to all married women
including Muslim married women. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Whether section
125 CrPC applies to all non-Muslim divorced women:
Held: Yes - Section 125 of the CrPC applies to all non-Muslim
divorced women. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Whether section
125 of the CrPC applies to all such Muslim women, married
and divorced under the Special Marriage Act in addition to
remedies available under the Special Marriage Act:
Held: Yes - Insofar as divorced Muslim women are concerned,
Section 125 of the CrPC applies to all such Muslim women,
married and divorced under the Special Marriage Act in addition
to remedies available under the Special Marriage Act. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Muslim Women
(Protection of Rights on Divorce) Act, 1986 - If Muslim women
are married and divorced under Muslim law, whether Section
125 of the CrPC as well as the provisions of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 are applicable:
Held: If Muslim women are married and divorced under Muslim law
then Section 125 of the CrPC as well as the provisions of the 1986
Act are applicable - Option lies with the Muslim divorced women
to seek remedy under either of the two laws or both laws - This
is because the 1986 Act is not in derogation of Section 125 of the
CrPC but in addition to the said provision. [Per Court]
Code of Criminal Procedure, 1973 - s.125 - Muslim Women
(Protection of Rights on Divorce) Act, 1986 - s.127(3)(b) - If
Section 125 of the CrPC is also resorted to by a divorced Muslim
woman, as per the definition under the 1986 Act, whether any
order passed under the provisions of 1986 Act shall be taken
into consideration under Section 127(3)(b) of the CrPC:
Held: Yes - If Section 125 of the CrPC is also resorted to by a
divorced Muslim woman, as per the definition under the 1986 Act,
then any order passed under the provisions of 1986 Act shall be
taken into consideration under Section 127(3)(b) of the CrPC.
[Per Court]
Code of Criminal Procedure, 1973 - s.125 - Muslim Women
(Protection of Rights on Divorce) Act, 1986 - In case of an
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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
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Mohd. Abdul Samad v. The State of Telangana & Anr.
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
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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
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Mohd. Abdul Samad v. The State of Telangana & Anr.
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
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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
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Mohd. Abdul Samad v. The State of Telangana & Anr.
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
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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
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Mohd. Abdul Samad v. The State of Telangana & Anr.
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
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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
[2024] 7 S.C.R.
1247
Mohd. Abdul Samad v. The State of Telangana & Anr.
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)]
Case Law Cited
AUGUSTINE GEORGE MASIH, J.
Danial Latifi and Another v. Union of India [2001] Supp. 3 SCR
419 : (2001) 7 SCC 740; Mohd. Ahmed Khan v. Shah Bano Begum
and Others [1985] 3 SCR 844 : (1985) 2 SCC 556 - followed.
Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 - relied on.
M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation
of India and Another [1981] 1 SCR 498 : (1980) 4 SCC 435;
Chennupati Kranthi Kumar v. State of Andhra Pradesh and Others
(2023) 8 SCC 251; Iqbal Bano v. State of Uttar Pradesh and
Another [2007] 7 SCR 949 : (2007) 6 SCC 785; Shri Bhagwan
Dutt v. Smt. Kamla Devi and Another [1975] 2 SCR 483 : (1975)
2 SCC 386; Inderjit Kaur v. Union of India and Others (1990) 1
1248
[2024] 7 S.C.R.
Digital Supreme Court Reports
SCC 344; Fuzlunbi v. K. Khader Vali and Another [1980] 3 SCR
1127 : (1980) 4 SCC 125; Shabana Bano v. Imran Khan [2009]
16 SCR 190 : (2010) 1 SCC 666; Khatoon Nisa v. State of Uttar
Pradesh and Others (2014) 12 SCC 646; Shamim Bano v. Asraf
Khan [2014] 4 SCR 844 : (2014) 12 SCC 636 - referred to.
Shahid Jamal Ansari v. State of Uttar Pradesh (2008) SCC OnLine
All 1077 - held not correct law.
Kunhimohammed v. Ayishakutty (2010) SCC OnLine Ker 567 -
approved.
Mumtazben Jusabbhai Sipahi v. Mahebubkhan Usmankhan Pathan,
1998 SCC OnLine Guj 279; Mrs. Humera Khatoon and Others v.
Mohd. Yaqoob (2010) SCC OnLine All 202; Sazid v. State of Uttar
Pradesh and Others (2011) SC OnLine All 1059; Jubair Ahmad
v. Ishrat Bano (2019) SCC OnLine All 4065; Shakila Khatun v.
State of Uttar Pradesh and Another (2023) SCC OnLine All 75;
Khalil Abbas Fakir v. Tabbasum Khalil Fakir and Another (2024)
SCC OnLine Bom 23 - referred to.
B.V. NAGARATHNA, J.
Danial Latifi v. Union of India [2001] Supp. 3 SCR 419 : (2001)
7 SCC 740; Mohd. Ahmed Khan v. Shah Bano Begum [1985] 3
SCR 844 : (1985) 2 SCC 556; Curative Petition (C) No.44 of 2023
in Review Petition (C) No.704 of 2021 arising out of Civil Appeal
No.1599 of 2020 (In Re : Interplay between Arbitration Agreements
under the Arbitration and Conciliation Act, 1996) - followed.
Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkh [1982]
1 SCR 695 : AIR 1981 SC 1972; Prabha Tyagi v. Kamlesh Devi
[2022] 5 SCR 970 : (2022) 8 SCC 90 - relied on.
Jagir Kaur v. Jaswant Singh [1964] 2 SCR 73; Bhagwan Dutt v.
Kamla Devi [1975] 2 SCR 483 : (1975) 2 SCC 386; Jasbir Kaur
Sehgal v. District Judge, Dehradun [1997] Supp. 3 SCR 529 : (1997)
7 SCC 7; Bhuwan Mohan Singh v. Meena [2014] 8 SCR 858 :
(2015) 6 SCC 353; Reema Salkan v. Sumer Singh Salkan [2018]
12 SCR 350 : (2019) 12 SCC 303; Bai Tahira v. Ali Hussain Fidaalli
Chothia [1979] 2 SCR 75 : (1979) 2 SCC 316; Fuzlunbi v. K. Khader
Vali [1980] 3 SCR 1127 : (1980) 4 SCC 125; Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram [1986] 3 SCR 866 : (1986) 4 SCC
447; ICICI Bank Ltd. v. SIDCO Leathers Ltd. [2006] Supp. 1 SCR
[2024] 7 S.C.R.
1249
Mohd. Abdul Samad v. The State of Telangana & Anr.
528 : (2006) 10 SCC 452; Aswini Kumar Ghosh v. Arabinda Bose
[1953] 1 SCR 1 : AIR 1952 SC 369; Municipal Corporation, Indore
v. Ratnaprabha, AIR 1977 SC 308; Sabra Shamim v. Maqsood
Ansari (2004) 9 SCC 616; Binoy Viswam v. Union of India [2017]
7 SCR 1 : (2017) 7 SCC 59; Navtej Singh Johar v. Union of India
[2018] 7 SCR 379 : (2018) 10 SCC 1; Shabana Bano v. Imran
Khan [2009] 16 SCR 190 : (2009) 14 SCALE 331; Juveria Abdul
Majid Patni v. Atif Iqbal Mansoori [2014] 10 SCR 479 : (2014) 10
SCC 736; Rana Nahid @ Reshma @ Sana v. Sahidul Haq Chisti
[2020] 7 SCR 324 : (2020) 7 SCC 657; Kirti v. Oriental Insurance
Co. Ltd. [2021] 1 SCR 989 : (2021) 2 SCC 166 - referred to.
Kunhi Moyin v. Pathumma, 1976 KLT 87; Karim Abdul Rehman
Shaikh v. Shehnaz Karim Shaikh (2000) SCC OnLine Bom 446;
Abdul Hameed v. Fousiya (2004) 3 KLT 1049 - referred to.
Books and Periodicals Cited
Principles of Statutory Interpretation by Justice G.P. Singh, 15th
Edition, Chapter 5.4, p.284]
List of Acts
Code of Criminal Procedure, 1973; Muslim Women (Protection
of Rights on Marriage) Act, 2019; Muslim Women (Protection of
Rights on Divorce) Act, 1986; Constitution of India.
List of Keywords
Section 125 of Code of Criminal Procedure, 1973; Section 127(3)
(b) of Code of Criminal Procedure, 1973; Section 3 of Muslim
Women (Protection of Rights on Divorce) Act, 1986; Section 5 of
of the Muslim Women (Protection of Rights on Marriage) Act, 2019;
Muslim married woman; Non-muslim divorced woman; Divorced
muslim woman; Illegal divorce; Maintenance; Non-obstante clause;
Social justice; Secular provision; Personal law; Socio-beneficial
legislation; Deprivation; Destitution.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2842
of 2024
From the Judgment and Order dated 13.12.2023 of the High Court
for the State of Telangana at Hyderabad in CRP No. 12222 of 2023
1250
[2024] 7 S.C.R.
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Appearances for Parties
Gaurav Agrawal, Sr. Adv., Amicus Curiae.
S. Wasim A. Qadri, Sr. Adv., Manan Daga, Ms. Udita Singh, Tamim
Qadri, Saeed Qadri, Shraveen Kumar Verma, Mrs. Kareena Fareed,
Saahil Gupta, Deepak Bhati, Shvendra Singh, Advs. for the Appellant.
Respondent-in-person.
Judgment / Order of the Supreme Court
Judgment
Augustine George Masih, J.
1.
Leave granted.
2.
This appeal challenges the Order dated 13.12.2023 passed in Criminal
Petition No. 12222 of 2023 moved under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "CrPC 1973"),
whereby the High Court of Telangana modified the Order dated
09.06.2023 passed by the Family Court in M.C No. 171 of 2019.
By virtue of disposing of the said petition, the High Court decreased
the quantum of interim maintenance payable by the Appellant herein
from INR 20,000/- (Rupees Twenty Thousand only) per month to INR
10,000/- (Rupees Ten Thousand only) per month.
3.
As per the Appellant, the brief facts leading to the instant appeal are
that the Appellant herein was the husband of the Respondent No. 02.
Both the parties entered the matrimonial consortium on 15.11.2012.
However, as their relationship deteriorated, Respondent No. 02 left
the matrimonial home on 09.04.2016. Subsequently, Respondent No.
02 initiated criminal proceedings against the Appellant by lodging FIR
No. 578 of 2017 for offences punishable under Sections 498A and
406 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC
1860"). In response, the Appellant herein pronounced a triple talaq
on 25.09.2017 and moved for divorce before the office of Quzath
seeking a declaration of divorce, which was eventually granted ex
parte, and the divorce certificate was issued on 28.09.2017.
4.
It is further claimed that he attempted to send INR 15,000/- (Rupees
Fifteen Thousand only) apropos maintenance for the iddat period,
which the Respondent No. 02 is said to have refused. Instead, she
moved a petition for interim maintenance under Section 125(1) of
[2024] 7 S.C.R.
1251
Mohd. Abdul Samad v. The State of Telangana & Anr.
CrPC 1973 before the Family Court vide M.C. No. 171 of 2019,
which was consequently allowed vide Order dated 09.06.2023.
Seeking quashing of the said Order, the Appellant herein moved
the High Court of Telangana, eventually leading to passing of the
instant Impugned Order dated 13.12.2023.
5.
The prime contention of the Appellant while moving this Court is that
the provisions of Section 125 of CrPC 1973 do not prevail in light of
the enactment of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 (hereinafter referred to as the "1986 Act"). Furthermore, it
is contended that even if a "divorced Muslim woman" seeks to move
the court under the secular provision of Section 125 of CrPC 1973,
it would not be maintainable, rather the correct procedure would be
to file an application under Section 5 of the 1986 Act, which is not
the case herein.
6.
To substantiate the said contentions, the learned Senior Advocate
for the Appellant herein, vehemently argued that since the 1986
Act provides a more beneficial and efficacious remedy for divorced
Muslim women in contradistinction to Section 125 of CrPC 1973,
thereby the recourse lies exclusively under the 1986 Act. In addition,
it is submitted that the 1986 Act being a special law, prevails over
the provisions of CrPC 1973. To buttress his contentions, reliance
is placed on a decision rendered by a 3-Judge Bench in M/s. Jain
Ink Manufacturing Company v. Life Insurance Corporation of
India and Another (1980) 4 SCC 435 wherein this Court went on
to hold that a special law would supersede a general law and if such
conflicting statutes are passed by the same legislature, the rule of
harmonious construction is to be applied while interpreting the said
statutes. Several other judgments to this effect were also brought
to our notice with the similar position being reiterated as in a recent
judgment of this Court in Chennupati Kranthi Kumar v. State of
Andhra Pradesh and Others (2023) 8 SCC 251.
7.
He further emphasised that Sections 3 and 4 of the 1986 Act,
commencing with a non-obstante clause, shall have an overriding
effect on any other statute operating in the same field. An
acknowledgment to this effect is said to have been found in a
5-Judge Bench in Danial Latifi and Another v. Union of India
(2001) 7 SCC 740 and specifically in paragraph numbers 21 to 24.
Further reliance is placed on paragraph numbers 03, 07, 08, and
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09 of the judgment in Iqbal Bano v. State of Uttar Pradesh and
Another (2007) 6 SCC 785. Another limb of his submission is based
upon the transitional provision of Section 7 of the 1986 Act, in an
attempt to establish supersedence and clarity as to the intent of the
legislature on prevalence of the 1986 Act and the procedure and
rights contemplated therein.
8.
To assist this Court, Mr Gaurav Agrawal, Senior Advocate, was
appointed as amicus curiae vide Order dated 09.02.2024, who
eventually went on to submit that the remedy under a secular
statutory provision of Section 125 of CrPC 1973 is not foreclosed
for a divorced Muslim woman by virtue of enactment of a personal
law remedy under Section 3 of the 1986 Act to the limited extent of
maintenance, as the latter does not in any manner, expressly or by
necessary implication, bar the exercise of former remedy. To buttress
this submission, he went on to highlight the distinction between the
very object and purpose of the aforesaid provisions. Mr Agrawal,
while also extensively referring to the 5-Judge Bench decision in
Danial Latifi (supra), goes on to submit that the explicit question
as to whether the non-obstante clause in Section 3 of the 1986 Act
takes away the rights under Section 125 of CrPC 1973, was not
dealt by this Court therein. However, it is his contention that the
observations in paragraph number 33 of this judgment suggest an
interpretation that a divorced Muslim woman is also entitled to all
the rights of maintenance as are available to other equally situated
women in the country and an interpretation otherwise would only
infringe upon the fundamental rights conferred through Articles 14,
15, and 21 of the Constitution of India 1950 (hereinafter referred to
as "Constitution of India").
9.
Mr Agrawal also brought to our attention numerous oppugnant
decisions of the High Courts, thus bringing out the conflict between
the provisions while interpreting the provisions of the 1986 Act visà-vis CrPC 1973, as aforementioned. A reference to these decisions
would be made as part of the analysis hereinafter.
10. We have heard the learned Senior Advocate for the Appellant, as
well as the learned amicus curiae at length and in the light of their
submissions, it is requisite to consider the historical perspective,
the grey areas leading to a clarified position of law by this Court
regarding the secular provision of maintenance under Section 125
[2024] 7 S.C.R.
1253
Mohd. Abdul Samad v. The State of Telangana & Anr.
of CrPC 1973, as well as the rights guaranteed under personal law
to a divorced Muslim woman through Section 3 of the 1986 Act.
11. The legislature through Section 488 of the Code of Criminal Procedure,
1898, and subsequently by introducing Section 125 CrPC 1973,
sought to carry on the efficacious remedy through a summary
procedure in favour of a wife, including a divorced woman, and
others as applicable. To better comprehend the instant provision,
the same is reproduced hereinbelow:
"125.