MOHD. ABDUL SAMAD v. THE STATE OF TELANGANA & ANR

Citation: Criminal Appeal No. 2842 of 2024

Court: Allahabad High Court (Lucknow Bench)

Bench: Mohd. Abdul Samad

Case summary

relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of

Judgment text

SUPREME COURT OF INDIA Mohd. Abdul Samad v. The State of Telangana & Anr. Criminal Appeal No. 2842 of 2024 [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 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 1238 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 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 1240 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 well- expounded 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 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 1242 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 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 1244 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 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 1246 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 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 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 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 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 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 1252 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 vis- à-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 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. Order for maintenance of wives, children and parents.

-- (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: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such 1254 person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

Explanation. --For the purposes of this Chapter,-- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Mohd. Abdul Samad v. The State of Telangana & Anr.

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation. --If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent. " 12. 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. This Court similarly held in the decision of ShriBhagwan Dutt v. Smt. Kamla Devi and Another (1975) 2 SCC 386 that the nature of power and jurisdiction vested with a Magistrate by virtue of the instate provision is not punitive in nature and neither it is remedial, but it is a preventive measure.

It was also observed that while any such right may or may not exist as a consequence of any of the personal laws applicable to the concerned parties, they shall continue to exist distinctively, and independently as against the secular provision. 13. 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 (1990) 1 SCC 344, it 1256 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. 14. In Fuzlunbi v. K. Khader Vali and Another (1980) 4 SCC 125 (SC), it was categorically observed by this Court that enactment of the said provision charges the court with a deliberate secular design to enforce maintenance or its equivalent against the humane obligation, which is derived from the State's responsibility for social welfare. The same is not confined to members of one religion or region, but the whole community of womanhood. 15. At this stage, it is pertinent to consider the concerned personal laws which allegedly stand in conflict with the secular provision of Section 125 of CrPC 1973. The 1986 Act was brought about by the legislature as an attempt to clarify the position laid down. A 5-Judge Bench in Mohd. Ahmed Khan v.

Shah Bano Begum and others (1985) 2 SCC 556 extensively dealt with the issue of maintenance apropos the obligation of a Muslim husband to his divorced wife who is unable to maintain herself, either after having been given divorce or having had sought one. The Bench unanimously went on to hold that the obligation of such a husband would not be affected by the existence of any personal law in the said regard and the independent remedy for seeking maintenance under Section 125 of CrPC 1973 is always available. It also went on to observe that, even assuming, there is any conflict between the secular and personal law provisions in regard to maintenance being sought by a divorced wife, the Explanation to second Proviso to Section 125(3) of CrPC 1973 unmistakably shows the overriding nature of the former.

While elaborating on the said observation, it explained that the wife has been conferred with the right to refuse to live with her husband who has contracted another marriage, let alone three or four other marriages. 16. After the pronouncement of the aforesaid verdict, a controversy is said to have emerged anent the true obligations of a Muslim husband to Mohd. Abdul Samad v. The State of Telangana & Anr. pay maintenance to his divorced wife, particularly beyond the iddat period. The Parliament, as an attempt to clarify the position, brought about the 1986 Act. Herein, it was sought to specify the entitlements of such a woman at the time of divorce. Section 3 of the 1986 Act deals with this aspect and reads as follows: "3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.

-- (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.

1258 (3) Where an application has been made under sub- section (2) by a divorced woman, the Magistrate may, if he is satisfied that-- (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or (b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as it and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.

(4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. " Mohd. Abdul Samad v. The State of Telangana & Anr. 17. After the 1986 Act came into force, a series of writ petitions were moved before this Court challenging its constitutional validity on ground of being violative of Articles 14, 15 and 21 of the Constitution of India.

Sections 3 and 4 of the 1986 Act were the principal sections under attack as part of the said writ petitions. Section 3, which opens up with a non-obstante clause seeking to override the application of all other existing laws, was carefully perused by this Court in the common verdict rendered on the constitutional validity in the decision in Danial Latifi (supra). Elaborating on the prevalence of Section 125 of CrPC 1973 as a secular protection available to women across communities, it was observed in paragraph number 33 as follows: "33. In Shah Bano case [(1985) 2 SCC 556: 1985 SCC (Cri) 245] this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman.

The contention put forth on behalf of the Muslim organisations who are interveners before us is that under the Act, vagrancy or destitution is sought to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance through others. If for any reason the interpretation placed by us on the language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will have to examine the effect of the provisions as they stand, that is, a Muslim woman will not be entitled to maintenance from her husband after the period of iddat once the talaq is pronounced and, if at all, thereafter maintenance could only be recovered from the various persons mentioned in Section 4 or from the Wakf Board. This Court in Olga Tellis v. Bombay Municipal Corpn. [(1985) 3 SCC 545] and Maneka Gandhi v.

Union of India [(1978) 1 SCC 248] held that the concept of "right to life and personal liberty" guaranteed under Article 21 of the Constitution would include the "right to live with dignity". Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 CrPC until she may remarry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the 1260 Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC.

Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community.

The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. It is well settled that on a rule of construction, a given statute will become "ultra vires" or "unconstitutional" and, therefore, void, whereas on another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that the legislature does not intend to enact unconstitutional laws. We think, the latter interpretation should be accepted and, therefore, the interpretation placed by us results in upholding the validity of the Act.

It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way round. " Mohd. Abdul Samad v. The State of Telangana & Anr. While the Court prima facie observed the said provisions to be violative of Articles 14 and 15 of the Constitution of India, the latter interpretation, seeking to uphold the validity, was eventually adopted and the 1986 Act was read down to not foreclose the secular rights of a divorced Muslim woman. 18. The position that the rights under Section 125 of CrPC 1973 would also be accessible to a divorced Muslim woman was substantially reiterated in Shabana Bano v. Imran Khan (2010) 1 SCC 666, whereby this Court, through a cumulative reading of the decision in Danial Latifi (supra), reached the said conclusion. 19. The same question of law again knocked on the doors of this Court in Khatoon Nisa v.

State of Uttar Pradesh and Others (2014) 12 SCC 646 wherein the 5-Judge Bench also took the assistance of the observations made in the decision in Danial Latifi (supra). While acknowledging the similar parameters and considerations for the purpose of adjudicating petitions under both the laws, secular and personal, it held that a divorced Muslim woman is entitled to invoke the jurisdiction under Section 125 of CrPC 1973 to seek her right of maintenance even if she does not exercise her choice of election as stipulated under Section 5 of the 1986 Act. The relevant paragraph number 10 is reproduced herein below: "10.

Subsequent to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short "the Act") as it was considered that the jurisdiction of the Magistrate under Section 125 CrPC can be invoked only when the conditions precedent mentioned in Section 5 of the Act are complied with, in the case in hand, the Magistrate came to a finding that there has been no divorce in the eye of law and as such, the Magistrate has the jurisdiction to grant maintenance under Section 125 CrPC. This finding of the Magistrate has been upheld by the High Court. The validity of the provisions of the Act was for consideration before the Constitution Bench in the case of Danial Latifi v. Union of India [(2001) 7 SCC 740].

In the said case by reading down the provisions of the Act, the validity of the Act has been upheld and it has been observed that under the Act itself when parties agree, the provisions of Section 125 CrPC could be invoked as contained in Section 5 of 1262 the Act and even otherwise, the Magistrate under the Act has the power to grant maintenance in favour of a divorced woman, and the parameters and considerations are the same as those in Section 125 CrPC. It is undoubtedly true that in the case in hand, Section 5 of the Act has not been invoked. Necessarily, therefore, the Magistrate has exercised his jurisdiction under Section 125 CrPC.

But, since the Magistrate retains the power of granting maintenance in view of the Constitution Bench decision in Danial Latifi case [(2001) 7 SCC 740] under the Act and since the parameters for exercise of that power are the same as those contained in Section 125 CrPC, we see no ground to interfere with the orders of the Magistrate granting maintenance in favour of a divorced Muslim woman. In fact, Mr Qamaruddin, learned counsel appearing for the appellants, never objected to pay maintenance as ordered by the Magistrate. But, he seriously disputes the findings of the Magistrate on the status of the parties and contends that the Magistrate was wholly in error in coming to the conclusion that there has been no divorce between the parties in the eye of law. " (Underlining is ours) 20. Subsequently, in Shamim Bano v.

Asraf Khan (2014) 12 SCC 636, this Court had to consider the maintainability of a petition under Section 125 of CrPC 1973 vis-à-vis a situation where a petition under Section 3 of the 1986 Act has been subsequently moved. Holding that an election under Section 5 of the 1986 Act was not imperative, since both the petitions were moved before a Magistrate, it clarified that even for the purpose of adjudicating a petition under the personal law, specifically in regard to maintenance for a divorced Muslim woman, the parameters of Section 125 of CrPC 1973 would be applicable. 21. It is imperative to acknowledge that the enactment of the Family Courts Act, 1984 (hereinafter referred to as "FCA 1984") had excluded the jurisdiction of a Magistrate under Chapter IX of CrPC 1973, of which Section 125 is a part, wherein a Family Court had been established for the concerned area or jurisdiction.

After the enactment of FCA 1984, a situation arose where a divorced Muslim woman moved a Family Court under Section 125 of CrPC 1973, and a similar circumstance Mohd. Abdul Samad v. The State of Telangana & Anr. was dealt in Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 in light of the question of law at hand. Herein, while relying on the earlier mentioned judgments of this Court, it observed that the concerned Family Court had rightly, and without a shadow of a doubt, held that Section 125 of CrPC 1973 would be applicable. The relevant paragraph number 09 is reproduced below: "9. First of all, we intend to deal with the applicability of Section 125 CrPC to a Muslim woman who has been divorced. In Shamim Bano v. Asraf Khan [(2014) 12 SCC 636 : (2014) 5 SCC (Civ) 145 : (2014) 5 SCC (Cri) 162], this Court after referring to the Constitution Bench decisions in Danial Latifi v. Union of India [(2001) 7 SCC 740 : (2007) 3 SCC (Cri) 266] and Khatoon Nisa v. State of U. P.

[Khatoon Nisa v. State of U. P. (2014) 12 SCC 646 : (2014) 5 SCC (Civ) 155 : (2014) 5 SCC (Cri) 170] had opined as follows : (Shamim Bano case [(2014) 12 SCC 636 : (2014) 5 SCC (Civ) 145 : (2014) 5 SCC (Cri) 162], SCC p. 644, paras 13-14) '13. The aforesaid principle clearly lays down that even after an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench [(2001) 7 SCC 740 : (2007) 3 SCC (Cri) 266] opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference.

Thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence. 14. Slightly recently, in Shabana Bano v. Imran Khan [(2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010) 1 SCC (Cri) 873], a two-Judge Bench, placing reliance 1264 on Danial Latifi [(2001) 7 SCC 740 : (2007) 3 SCC (Cri) 266], has ruled that : (Shabana Bano case [(2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010) 1 SCC (Cri) 873], SCC p. 672, para 21) '21. The appellant's petition under Section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 CrPC cannot be restricted for the iddat period only.

' Though the aforesaid decision was rendered interpreting Section 7 of the Family Courts Act, 1984, yet the principle stated therein would be applicable, for the same is in consonance with the principle stated by the Constitution Bench in Khatoon Nisa [Khatoon Nisa v. State of U. P. (2014) 12 SCC 646 : (2014) 5 SCC (Civ) 155 : (2014) 5 SCC (Cri) 170]. ' In view of the aforesaid dictum, there can be no shadow of doubt that Section 125 CrPC has been rightly held to be applicable by the learned Family Judge. " 22. Before perusing the submissions made by the Counsel, it is paramount to also consider the bare text of the concerned provisions vis-à-vis their comparative dissection. 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. 23. Another distinction vis-à-vis the aforementioned provisions, relates to the time period within which proceedings initiated thereunder are to be decided. 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 Mohd. Abdul Samad v. The State of Telangana & Anr. 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. 24. After the advent of the decision in Danial Latifi (supra), numerous High Courts also went on to contemplate and analyse the instant question of law. A quick examination of the said judgment by various High Courts allows us to categorise the decisions rendered therein into two sets of views. The first view in certain judgments so rendered held that the remedy is to be exclusively exercised under Section 3 of the 1986 Act, impliedly holding that the rights under the secular provisions stood extinguished.

Another view in certain other judgments allowed a divorced Muslim woman to seek the remedy of maintenance under Section 125 of CrPC 1973 while explicit existence of Section 3 of the 1986 Act was recognised. 25. The set of judgments, that went on to hold that the rights of a divorced Muslim woman are to be exercised through the provisions of the 1986 Act and specifically under Section 3 therein, and, not through the secular provision of Section 125 of CrPC 1973. One decision by a Single Judge of the High Court of Allahabad in Shahid Jamal Ansari v. State of Uttar Pradesh 2008 SCC OnLine All 1077 is brought to our attention by the learned amicus curiae whereby the Court opined that a divorced Muslim woman cannot claim maintenance from her former husband by virtue of secular provision of Section 125 of CrPC 1973 and the 1986 Act, being a complete code in itself on the subject matter of maintenance, prevails. 26.

Deviating from the aforesaid approach, certain High Courts adopted a beneficial interpretation, that is to say, that the non-obstante clause in the 1986 Act, in no manner bars the remedy under Section 125 CrPC 1973. In this regard, a reference has been made to a decision of Single Judge of High Court of Gujarat in Mumtazben Jusabbhai Sipahi v. Mahebubkhan Usmankhan Pathan 1998 SCC OnLine Guj 279, a decision of High Court of Kerala in Kunhimohammed v. Ayishakutty 2010 SCC OnLine Ker 567, the decisions of High Court 1266 of Allahabad in 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, and Shakila Khatun v. State of Uttar Pradesh and Another 2023 SCC OnLine All 75, and the decision of a Single Judge of High Court of Bombay in Khalil Abbas Fakir v. Tabbasum Khalil Fakir and Another 2024 SCC OnLine Bom 23. 27.

Amongst these set of decisions, the one rendered by a Division Bench of the High Court of Kerala in Kunhimohammed (supra) has significantly occupied the field in regard to the limited question of law before us. A perusal of the instant judgment showcases the same to be in line with the ratio decidendi rendered by this Court in the decision in Danial Latifi (supra) by holding that there is no express extinguishment of the rights under Section 125 CrPC 1973 and neither the same was intended or conceived by the legislature while enacting the 1986 Act. It was observed that the domains occupied by the two provisions are entirely different as the secular provision stipulates an inability to maintain oneself for invoking the said rights while Section 3 of the 1986 Act stands independent of one's ability or inability to maintain. Thereby, adopting a harmonious and purposive approach amidst the two alleged conflicting legislative protections. 28.

In consideration of the aforesaid well-established positions of law, as well as the submissions of the learned Senior Advocate and the learned amicus curiae, it is apposite to accordingly decide the fate of the instant petition moved before us. To begin with the contention in regard to the existence of non-obstante clause in Sections 3 and 4 of the 1986 Act, it is undoubtedly clarified by the Constitution Benches of this Court that the same cannot promptly be deemed to override any other rights so provided by the enactments of the legislature. We are, accordingly, also bound by the Doctrine of stare decisis contemplated through Article 141 of the Constitution of India to accept the said observations.

Furthermore, a bare perusal of Section 7 of the 1986 Act, reflects the same to be transitionary in nature and the interpretations in respect of Section 5 of the 1986 Act, as highlighted above through numerous decisions, reflect our inability to accept the passionate contentions of the learned Senior Advocate on behalf of the Appellant. Mohd. Abdul Samad v. The State of Telangana & Anr. 29. Thus, the High Court of Telangana, while modifying the Order(s) of the Family Court, was correct in upholding the maintainability of the petition filed under Section 125 of CrPC 1973 by Respondent No. 02 herein. Therefore, there is no infirmity in its Impugned Order dated 13. 12. 2023. 30.

In addition, Mr Agrawal proceeded to put forth a question before us that whether fulfilment of a divorced Muslim woman's rights, particularly maintenance under Section 3 of the 1986 Act, accepted by her without demur, would bar her to file an application under Section 125 of CrPC 1973 in light of statutory protection ameliorating the issue of double payment by a husband under secular, and personal laws, as provided under Section 127(3)(b) of CrPC 1973. 31. Before proceeding with this additional question of law, it is apposite to refer the bare provision of Section 127(3)(b) of CrPC 1973. The same is accordingly reproduced hereinbelow: "127.

Alteration in allowance - (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that - (a) xxx-xxx-xxx (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order - (i) in the case where such sum was paid before such order, from the date on which such order was made; (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;" 32.

Unequivocally, the most appropriate construction of these secular provisions of CrPC 1973 in regard to the right of maintenance is that 1268 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. To affirm, reliance is placed on paragraph numbers 28 and 29 of the decision in Danial Latifi (supra), which are reproduced below: "28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance.

It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word "provision" indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles.

The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time 29. The important section in the Act is Section 3 which provides that a divorced woman is entitled to obtain from Mohd. Abdul Samad v. The State of Telangana & Anr.

her former husband "maintenance", "provision" and "mahr", and to recover from his possession her wedding presents and dowry and authorizes the Magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations : (1) to make a "reasonable and fair provision" for his divorced wife; and (2) to provide "maintenance" for her. The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance", but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, "within the iddat period".

If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry as per Sections 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] was that the husband had not made a "reasonable and fair provision" for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC.

This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are "a reasonable and fair provision and maintenance to be made and paid" as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs -- "to be made and paid to her within the iddat period" it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the Magistrate to issue an 1270 order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to "provision".

Obviously, the right to have "a fair and reasonable provision" in her favour is a right enforceable only against the woman's former husband, and in addition to what he is obliged to pay as "maintenance"; thirdly, the words of The Holy Quran, as translated by Yusuf Ali of "mata" as "maintenance" though may be incorrect and that other translations employed the word "provision", this Court in Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether "mata" was rendered "maintenance" or "provision", there could be no pretence that the husband in Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] had provided anything at all by way of "mata" to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to "mata" is only a single or onetime transaction which does not mean payment of maintenance continuously at all.

This contention, apart from supporting the view that the word "provision" in Section 3(1)(a) of the Act incorporates "mata" as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables "a reasonable and fair provision" and "a reasonable and fair provision" as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245], actually codifies the very rationale contained therein.

" From the aforementioned paragraphs, 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 Mohd. Abdul Samad v. The State of Telangana & Anr. 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 well-expounded 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. 33. Having said that, it is also not to be a case where a specious amount rendered in favour of a divorced woman by virtue of requirements laid down in either the personal law or the customary law of the parties is utilised to evade the liability under Section 125 of CrPC 1973 or to seek an equivalent reduction in the amount of maintenance to be provided therein. There ought to be a reasonable substitute for the maintenance under personal or customary law equating to a rational nexus between the actual sum of maintenance paid and the potential of maintenance under the equivalent provision of secular law.

Having made the said observations, a reference should again be made to the decision in Fuzlunbi (supra) in paragraph numbers 19(1) to 19(4) which declared that: "19. We may sum up and declare the law foolproof fashion: (1) Section 127(3)(b) has a setting, scheme and a purpose and no talaq of the purpose different from the sense is permissible in statutory construction. (2) The payment of an amount, customary or other, contemplated by the measure must inset the intent of preventing destitution and providing a sum which is more or less the present worth of the monthly maintenance allowances the divorcee may need until death or remarriage overtake her. The pol