Indian Law Research

Mohd. Abdul Samad v. State of Telangana

Decision date:

Court
Supreme Court of India
Decision date
10 July 2024
Citation / docket
2024 INSC 506
Source length
99 PDF pages
Review status
AI-assisted draft; not reviewed by a lawyer
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Draft summary

Written with AI assistance from the source judgment. Not reviewed by a lawyer. Historical decision summary, independently checked by an AI reviewer; not a current-law certification.

In one sentence

The 1986 Muslim Women Act does not exclude a divorced Muslim woman's remedy under section 125 CrPC.

Question decided

Does the Muslim Women (Protection of Rights on Divorce) Act, 1986 displace the maintenance remedy under section 125 CrPC?

Key holdings

Outcome

The criminal appeal was dismissed. The two concurring judgments are followed by a joint order setting out their conclusions.

Source PDF pages: 97, 98, 99.

Plain-English explanation

The Court considered whether a divorced Muslim woman could seek maintenance through section 125 of the Code of Criminal Procedure despite the existence of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The judges delivered separate concurring reasons and then issued a joint order stating the conclusions. For a woman married and divorced under Muslim law, the 1986 Act was held to provide an additional remedy rather than remove access to section 125. The order recognises the option to seek relief under either law or both, while requiring an award under the 1986 Act to be taken into account through section 127(3)(b). This qualification matters: the decision should not be described as permission for unrestricted duplicate recovery. The order also distinguishes situations involving the Special Marriage Act and the legislation addressing illegal divorce. The husband's appeal was dismissed. This draft describes the judgment's CrPC reasoning and does not imply that every maintenance claim succeeds regardless of the statutory conditions. Review proceedings and the application of later procedural legislation remain matters for verification before publication.

Relevant law in the judgment

Separate opinions

Augustine George Masih and B.V. Nagarathna JJ. gave separate concurring judgments. The final three PDF pages contain their joint order.

Research notes and limits

The research located a review-petition listing, but its final disposition has not been confirmed. Verify that disposition and BNSS transition before publication.

Source and extraction notes

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Judgment — source material

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Source PDF page 1

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2024 INSC 506
 
Criminal Appeal No. 2842 of 2024                     Page 1 of 43 
 
REPORTABLE 
 
IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION 
 
CRIMINAL APPEAL NO. 2842 OF 2024 
[ARISING OUT OF SPECIAL LEAVE PETITION 
(CRL) NO. 1614 OF 2024] 
 
MOHD. ABDUL SAMAD          … APPELLANT 
VERSUS 
THE STATE OF TELANGANA  
& ANR.             … RESPONDENTS 
 
 
J  U  D  G  M  E  N  T 
 
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

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Criminal Appeal No. 2842 of 2024                     Page 2 of 43 
 
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 (h ereinafter referred to as 
“IPC 1860”). In response, the Appellant herein 
pronounced a triple talaq on 25.09.2017 and moved

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Criminal Appeal No. 2842 of 2024                     Page 3 of 43 
 
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 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

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Criminal Appeal No. 2842 of 2024                     Page 4 of 43 
 
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 An other 
(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

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Criminal Appeal No. 2842 of 2024                     Page 5 of 43 
 
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 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

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Criminal Appeal No. 2842 of 2024                     Page 6 of 43 
 
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

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Criminal Appeal No. 2842 of 2024                     Page 7 of 43 
 
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 submission s, 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 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

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Criminal Appeal No. 2842 of 2024                     Page 8 of 43 
 
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

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Criminal Appeal No. 2842 of 2024                     Page 9 of 43 
 
Provided further that the Magistrate may, 
during the pendency of the proceeding 
regarding monthly allowance for the 
maintenance under this sub-section, order 
such person to make a monthly allowance 
for the interim maintenance of his wife or 
such child, fat her 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,

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Criminal Appeal No. 2842 of 2024                     Page 10 of 43 
 
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 interi m 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:  
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

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Criminal Appeal No. 2842 of 2024                     Page 11 of 43 
 
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 3 8 of the 
Constitution of India. This Court similarly held in the 
decision of Shri Bhagwan 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.

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Criminal Appeal No. 2842 of 2024                     Page 12 of 43 
 
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 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

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Criminal Appeal No. 2842 of 2024                     Page 13 of 43 
 
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

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Criminal Appeal No. 2842 of 2024                     Page 14 of 43 
 
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 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

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Criminal Appeal No. 2842 of 2024                     Page 15 of 43 
 
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. 
(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

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Criminal Appeal No. 2842 of 2024                     Page 16 of 43 
 
(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 th e 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 paym ent if 
sooner made, subject to such person being 
heard in defence and the said sentence

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Criminal Appeal No. 2842 of 2024                     Page 17 of 43 
 
being imposed according to the provisions 
of the said Code.” 
 
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 destituti on on the part 
of a Muslim woman. The contention put 
forth on behalf of the Muslim 
organisations who are interveners before

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Criminal Appeal No. 2842 of 2024                     Page 18 of 43 
 
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 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 n ot 
appear to be reasonable and fair 
substitute of the provisions of Section 125 
CrPC. Such deprivation of the divorced

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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 th e 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 inter pretation placed 
by us results in upholding the validity of 
the Act. It is well settled that when by 
appropriate reading of an enactment the

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validity of the Act can be upheld, such 
interpretation is accepted by courts and 
not the other way round.” 
 
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

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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 mention ed 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 find ing 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 the Act and even otherwise, the 
Magistrate under the Act has the power to 
grant maintenance in favour of a divorced

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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 thos e 
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 w as 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

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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 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

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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 : (20 14) 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

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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 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

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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, relate s 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

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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, f ailure to comply with such order 
passed under Section 3(2) of the 1986 Act  may lead 
to issuance of a warrant for levying th e 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

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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

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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 J usabbhai Si pahi v. Mahebubkhan 
Usmankhan Pathan 1998 SCC OnLine Guj 279, a 
decision of High Court of Kerala in 
Kunhimohammed v. Ayishaku tty 2010 SCC 
OnLine Ker 567 , the decisions of  High Court 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

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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 submission s 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

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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.  
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 infirmit y in its 
Impugned Order dated 13.12.2023. 
30. In addition, Mr Agrawal proceed ed 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 ,

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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

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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 the legislature would 
never intend that a n 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

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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 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

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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 t he 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

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made while maintenance is to be paid; 
secondly, Section 4 of the Act, which 
empowers the Magistrate to issue an 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. I ndeed, 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

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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 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 divor ced Muslim woman is not 
restricted from exercising  her independent right of

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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 m aintenance 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.

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(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 deat h or 
remarriage overtake her. The policy of the 
law abhors neglected wives and destitute 
divorcees and Section 127(3)(b) takes care 
to avoid double payment one under 
custom at the time of divorce and another 
under Section 125. 
(3) Whatever the facts of a particular case, 
the Code, by enacting Sections 125 to 127, 
charges the court with the humane 
obligation of enforcing maintenance or its 
just equivalent to ill -used wives and 
castaway ex-wives, only if the woman has 
received voluntarily a sum, at the time of 
divorce, sufficient to keep her going 
according to the circumstances of the 
parties. 
(4) Neither personal law nor other 
salvationary plea will hold against the 
policy of public law pervading Section 
127(3)(b) as much as it does in Section 
125. So a farthing is no substitute for a 
fortune nor naive consent equivalent to 
intelligent acceptance…” 
 
34. It is observed that 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

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circumstance is that , when a divorced Muslim 
woman initially moves a petition under Section 125 
of CrPC 1973 and seeks an order for maintenance as 
against her former husband and only after receiving 
said entitlements, she chooses to exercise her 
substantial rights as provided under Section 3 of the 
1986 Act, and therein, the husband is also able to 
fulfil his concerned obligations to the appropriate 
satisfaction of the court, ensuring her future 
maintenance. It is then an d 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. 
35. 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 h erself, in such a 
factual matrix, undeniably, the right to move under 
this provision is open in favour of a divorced Muslim

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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 enactment s 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.  
36. Having said that, undoubtedly, if a “reasonable 
substitute” has been provided for by the husband as 
per their personal or customary laws at the time of 
their divorce, the maintenance  provided for by a 
Magistrate or a Family Court, as the case may be, 
under Section 125 of CrPC 1973, can be reduced to

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the extent of deemed double benefit being given to a 
divorced wife. 
37. From the aforementioned, we are inclined to conclude 
that 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.  
38. Accordingly, the decisions , as rendered by various 
High Court s, one of which has been referred as 
aforesaid, or even otherwise, and stand in 
contradistinction to the observations made 
hereinabove, do not lay down the correct position of 
law, are, therefore, bad in law.  
39. We note and  acknowledge the able assistance 
rendered by the learned amicus curiae  which has 
immensely benefitted this Court in settling the 
questions of law at hand.

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40. The Impugned Order dated 13.12.2023 passed by the 
High Court of Telangana is affirmed. Accordingly, the 
Appeal is dismissed in the above terms. 
41. Pending application(s), if any, also stand disposed of. 
 
 
.…………………………………….J.  
(B.V. NAGARATHNA) 
  
 
 
…….……………………………….J. 
(AUGUSTINE GEORGE MASIH) 
 
NEW DELHI;  
JULY 10, 2024.

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REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION 
CRIMINAL APPEAL NO.2842 OF 2024 
(Arising out of Special Leave Petition (Crl.) No.1614 of 2024) 
 
MOHD. ABDUL SAMAD    … APPELLANT 
VERSUS 
STATE OF TELANGANA & ANOTHER … RESPONDENTS 
 
 
 
J U D G M E N T 
 
NAGARATHNA J. 
I have perused the judgment proposed by my learned 
brother Augustine George Masih, J. and I agree with the same. 
Having concurred with his opinion, I would like  to record 
additional reasons regarding the interpretation of Section 125 
of the Code of Criminal Procedure, 1973 (for short, “CrPC”) and 
Section 3 of the Muslim Women (Protection of Rights on 
Divorce) Act, 1986 (for short, “1986 Act”). 
Section 125 of the CrPC reads as under: 
“Section 125. Order for maintenance of wives, children and 
parents. - (1) If any person having sufficient means neglects or 
refuses to maintain;

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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 person to 
make a monthly allowance for the interim maintenance of his 
wife or such child, fat her 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;

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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 for 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: 
 
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 women 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 is living in adultery, or that 
without sufficient reason she refuses to live with her husband,

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or that they are living separately by mutual consent, the 
Magistrate shall cancel the order.” 
 
2.  A reading of the aforesaid provision would indicate that 
in respect of four categories of persons of a family  unable to 
maintain themselves , namely, wife, minor child , father and 
mother, if a person neglects or refuses to maintain them 
despite having sufficient means then a Magistrate of the first 
class (now, the family court  in certain States)  upon proof of 
such neglect or refusal  may  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 the person has to pay the same as 
directed. 
 
3.  Since the present case revolves around the expression “a 
wife who is unable to maintain herself ”, it is relevant to dwell 
further on the definition of a wife  under Section 1 25 of the 
CrPC. Explanation (b) thereto defines a wife to include a 
woman who has been divorced by, or has obtained a divorce 
from, her husband and has not remarried.  The definition being 
inclusive is therefore expansive  in nature. A divorced woman 
who has not remarried as well as a wife are placed on par for 
the purpose of seeking maintenance.  
 
4.  The States of Madhya Pradesh, Maharashtra, Rajasthan, 
Tripura, Uttar Pradesh and West Bengal have made State 
Amendments to Section 125 of the CrPC.

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Right to maintenance in a constitutional context:  
5.  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.  For 
immediate reference, Article 15(1) and (3) and Article 39(e) are 
reproduced as under: 
“15. Prohibition of discrimination on grounds of religion, 
race, caste, sex or place of birth. —(1) The State shall not 
discriminate against any citizen on grounds only of religion, 
race, caste, sex, place of birth or any of them. 
xxx     xxx          xxx 
(3) Nothing in this article shall prevent the State from making 
any special provision for women and children. 
xxx     xxx          xxx 
39. Certain principles of policy to be followed by the 
State.—The State shall, in particular, direct its policy towards 
securing—  
xxx     xxx          xxx 
(e) that the health and strength of workers, men and women, 
and the tender age of children are not abused and that citizens 
are not forced by economic necessity to enter avocations 
unsuited to their age or strength;” 
 
6.  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, t he 
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)

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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. There can be no manner of doubt that it is 
an instantiation of the constitutional philosophy of social 
justice that seeks to liber ate the Indian wife including a 
divorced woman from the shackl es of gender -based 
discrimination, disadvantage and deprivation. 
 
7.  Further, 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 (for 
short, “2005 Act”) which is applicable to an ‘aggrieved woman’ 
in a ‘shared household’ as defined under the provisions of the 
aforesaid Act. 
 
8.  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

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Section 125 of the CrPC irrespective of any other right created 
in favour of the wife under any other law. Therefore, t he 
passing of the 1986 Act, in my view, 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. 
 
9. The salutary parliamentary intent behind Section 488 of 
the erstwhile CrPC was exposited by Subba Rao, J., (as the 
learned Chief Justice of India then was) in Jagir 
Kaur vs. Jaswant Singh, (1964) 2 SCR 73.  It was held that 
“Chapter 36 of the Code of Criminal Procedure providing for 
maintenance of wives and children intends to serve a social 
purpose.” After the enactment of the CrPC, 1973, this Court 
in Bhagwan Dutt vs. Kamla Devi, (1975) 2 SCC 386 , held 
that in order to subserve the object of Section 125(1)  of the 
CrPC the Magistrate  must determine the wife’s requirements 
in such a manner that prevents vagrancy and destitution.   
While assuring the aggrieved woman a standard of living that 
is ‘neither luxurious nor penurious,’ this Court held that her 
separate income must also be accounted for while computing 
the amount of maintenance. Therefore, the object of 
maintenance proceedings is rehabilitative and not punitive as 
it seeks to efficaciously provide a deserted wife with food, 
clothing and shelter  - the very basic essentials or needs of a 
human life.

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10.  The direction to provide maintenance seeks to alleviate 
the financial stress and vulnerability of the impecunious 
woman who is dependent on her husband economically. It is 
indeed a constitutional imperative to redress the vulnerability 
of a married woman which includes a divorced woman who 
does not have an independent source of income under Section 
125 of the CrPC . It is commonplace that married women 
sacrifice employment opportunities to nurture the family, 
pursue child rearing, and undertake care work for the elderly, 
vide Jasbir Kaur Sehgal  vs. District Judge, Dehradun, 
(1997) 7 SCC 7.  A neglected dependent wife, which also 
includes a divorced woman who has no other source of income, 
has to perforce take recourse to borrowings from her 
parents/relatives/others during the interregnum to sustain 
herself and the minor children, till she receiv es interim 
maintenance. This makes her obligated in so many ways which 
may be taken advantage of by her parental (or natal) family or 
others from whom she may have borrowed. 
 
11.  It is in this delicate context that the law of maintenance 
strikes a careful, just and fair balance between the husband’s 
sacrosanct duty towards his wife and children and the social 
imperative of not imposing oppressive or punitive financial 
hardship on t he husband, vide Bhuwan Mohan 
Singh vs. Meena, (2015) 6 SCC 353; Reema 
Salkan vs. Sumer Singh Salkan, (2019) 12 SCC 303.

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Adequacy and sufficiency of maintenance: 
12.  One of the critical aspects of adjudicating claims for 
maintenance is ensuring adequate and sufficiency of 
maintenance so that the wife can maintain herself with dignity. 
The consistent emphasis of this Court’s jurisprudence upon 
sufficiency of maintenance amount and social protection of 
deserted women transcends the intricacies of our pluralist 
legal culture and personal laws.  
 
13.  I may also note the Kerala High Court’s Division Bench 
judgment in Kunhi Moyin v s. Pathumma, 1976 KLT 87 
(“Kunhi Moyin”) authored by Khalid, J. (as his Lordship then 
was). While dismissing a Muslim husband’s constitutional 
challenge to Section 125 of the CrPC, the High Court held that 
the salutary provision was enacted to achieve the ends of social 
welfare and reform.  Therefore, no claim of violation of the 
fundamental right to practice religion under Article 25 could 
be sustained. Of particular relevance was the interpretation of 
Section 127(3)(b) of the CrPC. The High Court found that an 
attempt may be made to rely upon Section 127(3)(b) to ‘destroy 
the effectiveness of Section 125’ and deny its benefit to rightful 
claimants. For the sake of clarity, the said provision  is 
extracted as under: 
“127. Alteration in allowance.- (1) On proof of a change in the 
circumstances of any person, receiving under section 125 a 
monthly allowance, for the maintenance or interim 
maintenance, or ordered under the same section to pay a 
monthly allowance for the maintenance, or interim 
maintenance, to his wife, child, father or mother, as the case 
may be, the Magistrate may make such alteration, as he thinks

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fit, in the allowance for the maintenance or the interim 
maintenance, as the case may be. 
(2) Where it appears to the Magistrate that, in consequence 
of any decision of a competent Civil Court, any order made 
under section 125 should be cancelled or varied, he shall cancel 
the order or, as the case may be, vary the same accordingly. 
(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) the woman has, after the date of such divorce, remarried, 
cancel such order as from the date of her remarriage; 
(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; 
(c) the woman has obtained a divorce from her husband and 
that she had voluntarily surrendered her rights to 
maintenance or interim maintenance, as the case may 
be after her divorce, cancel the order from the date thereof. 
(4) At the time of making any decree for the recovery of any 
maintenance or dowry by any person, to whom a monthly 
allowance for the maintenance and interim maintenance or any 
of them has been ordered to be paid under Section 125, the Civil 
Court shall take into account that sum which has been paid to, 
or recovered by, such person as monthly allowance for the 
maintenance and interim maintenance or any of them, as the 
case may be, in pursuance of the said order.” 
 
The learned judge clarified that Section 127(3)(b) does not 
refer to mahr or dower or the maintenance paid during the 
iddat period as these are not the sums ‘payable on divorce’

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under the personal law. What was encompassed by the terms 
was the amount of alimony or compensation paid upon 
dissolution of marriage under customary or personal law. 
Expositing the intent and scheme of Section 125 read with 
Section 127, it was held that the Parliament did not intend to 
take away by one hand what is given under Section 125 by the 
other hand.  
 
14.  Krishna Iyer, J .’s judgment in Bai Tahira vs. Ali 
Hussain Fidaalli Chothia, (1979) 2 SCC 316  is also 
instructive in this respect. This Court was confronted with the 
application of Section 125 of the CrPC by a Muslim woman who 
had been divorced through a consent decree. The husband had 
challenged the award of maintenance before the Sessions 
Judge on the ground that the Magistrate lacked jurisdiction to 
ascertain whether the petitioner -wife was a ‘wife’ with in the 
meaning of Section 125. Since the High Court had not 
interfered with the view of the Se ssions Judge, the Supreme 
Court granted leave and held that a destitute divorcee would 
be covered within the protection of Section 125 since she was 
suffering neglect. Krishna Iyer, J . emphasised the 
constitutional import of Section 125 in the following words: 
“7. The meaning of meanings is derived from values in a 
given society and its legal system. Article 15(3) has 
compelling, compassionate relevance in the context of 
Section 125 and the benefit of doubt, if any, in statutory 
interpretation belongs to the ill-used wife and the derelict 
divorcee. This social perspective granted, the resolution of all 
the disputes projected is easy. Surely, Parliament, in keeping 
with Article 15(3) and deliberate by design, made a special 
provision to help women in distress cast away by divorce.

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Protection against moral and material abandonment manifest 
in Article 39 is part of social and economic justice, specificated 
in Article 38, fulfilment of which is fundamental to the 
governance of the country (Article 37). From this coign of 
vantage we must view the printed text of the particular Code.” 
(emphasis supplied) 
 
15. The critical facet of the case was its interpretation of 
Section 127 of the CrPC. It was held that Section 127 did not 
totally exempt a husband from providing maintenance to a 
destitute ex -wife if the amount  he paid to her under the 
personal law was not sufficient to support her. It was held that: 
“12. The payment of illusory amounts by way of customary or 
personal law requirement will be considered in the reduction of 
maintenance rate but cannot annihilate that rate unless it is a 
reasonable substitute. The legal sanctity of the payment is 
certified by the fulfilment of the social obligation, not by a ritual 
exercise rooted in custom. No construction which leads to 
frustration of the statutory project can secure validation if the 
court is to pay true homage to the Constitution. The only just 
construction of the section is that Parliament intended 
divorcees should not derive a double benefit. If the first 
payment by way of mehar or ordained by custom has a 
reasonable relation to the object and is a capitalised substitute 
for the order under Section 125 — not mathematically but fairly 
— then Section 127(3)(b) subserves the goal and relieves the 
obliger, not pro tanto but wholly. The purpose of the payment 
“under any customary or personal law” must be to obviate 
destitution of the divorcee and to provide her with wherewithal 
to maintain herself. The whole scheme of Section 127(3)(b) is 
manifestly to recognise the subst itute maintenance 
arrangement by lump sum payment organised by the custom 
of the community or the personal law of the parties. There must 
be a rational relation between the sum so paid and its potential 
as provision for maintenance to interpret otherwise is to stultify 
the project. Law is dynamic and its meaning cannot be pedantic 
but purposeful. The proposition, therefore, is that no husband 
can claim under Section 127(3)(b) absolution from his 
obligation under Section 125 towards a divorced wife except on 
proof of payment of a sum stipulated by customary or personal 
law whose quantum is more or less sufficient to do duty for 
maintenance allowance.”

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16. This carefully balanced and gender -just interpretation 
further guided our jurisprudence in Fuzlunbi vs. K. Khader 
Vali, (1980) 4 SCC 125  and Mohd. Ahmed Khan vs. Shah 
Bano Begum, (1985) 2 SCC 556 (“Shah Bano”) insofar as the 
application of Section 125 to persons governed by Muslim 
Personal Law was concerned. In Shah Bano, this Court held 
that Section 125 overrides personal law of Muslims and hence 
a divorced Muslim woman is a “wife” within the meaning of this 
provision. The crux of these judgments 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.  
In Danial Latifi vs. Union of India, (2001) 7 SCC 740 
(“Danial Latifi”), this Court has recorded that there was a big 
uproar after the judgment in Shah Bano was pronounced and 
Parliament enacted the 1986 Act “ perhaps, with an intention 
of making the decision in Shah Bano ineffective.” 
 
Interpretation of 1986 Act: 
17. The Parliament rejected legislative proposals to totally 
exempt Muslims from Section 125 of the CrPC and a fter 
extensive discussion, the Parliament enacted the 1986 Act. The 
preamble of the 1986 Act reads as under: 
“An Act to protect the rights of Muslim women who have been 
divorced by, or have obtained divorce from, their husbands and 
to provide for matters connected therewith or incidental 
thereto.”

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18.  The Statement of Objects and Reasons of the 1986 Act 
manifests the Parliament’s intent to clarify the controversy 
emerging from the judgment in Shah Bano  regarding the 
obligation of the Muslim husband to pay maintenance to a 
divorced wife. It underlines that the Parliament was taking the 
opportunity to ‘specify the rights’ of a Muslim divorced woman 
so as to protect her interests. The Bill of the said Act specified 
rights vis à vis a Muslim divorced woman who shall be entitled 
to the following: 
i. Reasonable and fair provision and maintenance for 
the woman within the period of iddat; 
ii. Reasonable provisions and maintenance for the 
children born to her before or after her divorce 
extended to a period of two years from the dates of 
birth of the children;  
iii. Mahr or dower and all the properties given to her 
by her relatives, friends, husband or the husband's 
relatives, if the above benefits are not given to her 
at the time of divorce.  
In the eventuality that a Muslim divorced woman was 
unable to maintain herself after the iddat period, it was 
specified that she shall be entitled to: 
i. Maintenance by her relatives who would be entitled 
to inherit her property on her death according to 
Muslim law in the proportions in which they would 
inherit her property.

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ii. If any one of such relatives is unable to pay his or 
her share on the ground of his or her not having 
the means to pay, the other relatives who have 
sufficient means  shall pay the shares of these 
relatives also.  
iii. If a divorced woman has no relatives or i f such 
relatives are unable to provide  maintenance then 
the State Wakf Board shall pay maintenance  
ordered by the Magistrate. 
 
19. Sections 3 and 4  of the 1986 Act  which deal with the 
aforesaid aspects are extracted hereunder: 
“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

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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.  
(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 fit 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) to 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.  
4. Order for payment of maintenance. —(1) Notwithstanding 
anything contained in the foregoing provisions of this Act or in 
any other law for the time being in force, where the Magistrate 
is satisfied that a divorced woman has not re -married and is 
not able to maintain herself after the iddat period, he may make

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an order directing such of her relatives as would be entitled to 
inherit her property on her death according to Muslim law to 
pay such reasonable and fair maintenance to her as he may 
determine fit 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 such relatives and such 
maintenance shall be payable by such relatives in the 
proportions in which they would inherit he r property and at 
such periods as he may specify in his order:  
Provided that where such divorced woman has children, the 
Magistrate shall order only such children to pay maintenance 
to her, and in the event of any such children being unable to 
pay such maintenance, the Magistrate shall order the parents 
of such divorced woman to pay maintenance to her:  
Provided further that if any of the parents is unable to pay his 
or her share of the maintenance ordered by the Magistrate on 
the ground of his or her not having the means to pay the same, 
the Magistrate may, on proof of such inability being furnished 
to h im, order that the share of such relatives in the 
maintenance ordered by him be paid by such of the other 
relatives as may appear to the Magistrate to have the means of 
paying the same in such proportions as the Magistrate may 
think fit to order.  
(2) Where a divorced woman is unable to maintain herself and 
she has no relatives as mentioned in sub -section (1) or such 
relatives or any one of them have not enough means to pay the 
maintenance ordered by the Magistrate or the other relatives 
have not the means to pay the shares of those relatives whose 
shares have been ordered by the Magistrate to be paid by such 
other relatives under the second proviso to sub-section (1), the 
Magistrate may, by order direct the State Wakf Board 
established under section 9 of the Wakf Act, 1954 (29 of 1954), 
or under any other law for the time being in force in a State, 
functioning in the area in which the woman resides, to pay such 
maintenance as determined by him under sub-section (1) or, as 
the case may be, to pay the shares of such of the relatives who 
are unable to pay, at such periods as he may specify in his 
order.”  
 In Danial Latifi, this Court observed on the effect and 
implication of the 1986 Act on the judgment of this Court in 
Shah Bano as under:

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“8.  As held in Shah Bano case [(1985) 2 SCC 556 : 1985 SCC 
(Cri) 245] the true position is that if the divorced wife is able to 
maintain herself, the husband's liability to provide 
maintenance for her ceases with the expiration of the period of 
iddat but if she is unable to maintain herself after the period of 
iddat, she is entitled to have recourse to Section 125 CrPC. 
Thus it is was held that there is no conflict between the 
provisions of Section 125 CrPC and those of the Muslim 
personal law on the question of the Muslim husband's 
obligation to provide maintenance to his divorced wife, who is 
unable to maintain herself. This view is a reiteration of what is 
stated in two other decisions earlier rendered by this Court 
in Bai Tahira v. Ali Hussain Fidaalli Chothia [(1979) 2 SCC 316 
: 1979 SCC (Cri) 473] and  Fuzlunbi v. K. Khader Vali [(1980) 4 
SCC 125 : 1980 SCC (Cri) 916] . 
xxx         xxx   xxx 
17. This Court in  Shah Bano case  [(1985) 2 SCC 556 : 1985 
SCC (Cri) 245] held that although Muslim personal law limits 
the husband's liability to provide maintenance for his divorced 
wife to the period of iddat, it does not contemplate a situation 
envisaged by Section 125 CrPC of 1973. The Court held that it 
would not be incorrect or unjustified to extend the above 
principle of Muslim law to cases in which a divorced wife is 
unable to maintain herself and, there fore, the Court came to 
the conclusion that if the divorced wife is able to maintain 
herself the husband's liability ceases with the expiration of the 
period of iddat, but if she is unable to maintain herself after the 
period of iddat, she is entitled to recourse to Section 125 CrPC. 
This decision having imposed obligations as to the liability of 
the Muslim husband to pay maintenance to his divorced wife, 
Parliament endorsed by the Act the right of a Muslim woman to 
be paid maintenance at the time of divorce and to protect her 
rights.” 
 
20. This Court aptly summarised the position of a dependent 
married woman and her desperation on divorce in para 20 the 
judgment in Danial Latifi in the following words: 
“20. In interpreting the provisions where matrimonial 
relationship is involved, we have to consider the social 
conditions prevalent in our society. In our society, whether they 
belong to the majority or the minority group, what is apparent 
is that there exists a great disparity in the matter of economic 
resourcefulness between a man and a woman. Our society is

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male dominated, both economically and socially and women are 
assigned, invariably, a dependent role, irrespective of the class 
of society to which she belongs. A woman on her marriage very 
often, though highly educated, gives up her all other avocations 
and entirely devotes herself to the welfare of the family, in 
particular she shares with her husband, her emotions, 
sentiments, mind and body, and her investment in the marriage 
is her entire life — a sacramental sacrifice of her individual self 
and is far t oo enormous to be measured in terms of money. 
When a relationship of this nature breaks up, in what manner 
we could compensate her so far as emotional fracture or loss of 
investment is concerned, there can be no answer. It is a small 
solace to say that suc h a woman should be compensated in 
terms of money towards her livelihood and such a relief which 
partakes basic human rights to secure gender and social justice 
is universally recognised by persons belonging to all religions 
and it is difficult to perceive that Muslim law intends to provide 
a different kind of responsibility by passing on the same to 
those unconnected with the matrimonial life such as the heirs 
who were likely to inherit the property from her or the Wakf 
Boards. Such an approach appears to us to be a kind of 
distortion of the social facts. Solutions to such societal 
problems of universal magnitude pertaining to horizons of basic 
human rights, culture, dignity and decency of life and dictates 
of necessity in the pursuit of social justice should be invariably 
left to be decided on considerations other than religion or 
religious faith or beliefs or national, sectarian, racial or 
communal constraints. Bearing this aspect in mind, we have to 
interpret the provisions of the Act in question.” 
 
21. The provisions of the 1986 Act came to be upheld by the 
Constitution Bench of this Court in Danial Latifi. I may notice 
the clear conclusion that the Constitution Bench arrived at as 
under: 
“36. While upholding the validity of the Act, we may sum up our 
conclusions: 
 
(1)  A Muslim husband is liable to make reasonable and fair 
provision for the future of the divorced wife which obviously 
includes her maintenance as well. Such a reasonable and 
fair provision extending beyond the iddat period must be 
made by the husband within the iddat period in terms of 
Section 3(1)(a) of the Act.

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(2)  Liability of a Muslim husband to his divorced wife 
arising under Section 3(1)(a) of the Act to pay maintenance 
is not confined to the iddat period. 
 
(3)   A divorced Muslim woman who has not remarried and 
who is not able to maintain herself after the iddat period 
can proceed as provided under Section 4 of the Act against 
her relatives who are liable to maintain her in proportion 
to the properties which they inherit on her death according 
to Muslim law from such divorced woman including her 
children and parents. If any of the relatives being unable to 
pay maintenance, the Magistrate may direct the State Wakf 
Board established under the Act to pay such maintenance. 
 
(4)   The provisions of the Act do not offend Articles 14, 15 
and 21 of the Constitution of India.” 
 
22. This Court, while interpreting the 1986 Act, specifically 
repelled the contention that the 1986 Act was enacted to undo 
the effect of Shah Bano in the following words: 
“26. A reading of the Act will indicate that it codifies and 
regulates the obligations due to a Muslim woman divorcee by 
putting them outside the scope of Section 125 CrPC as the 
“divorced woman” has been defined as “Muslim woman who 
was married according to Muslim law and has been divorced by 
or has obtained divorce from her husband in accordance with 
the Muslim law”. But the Act does not apply to a Muslim woman 
whose marriage is solemnised either under the Indian Special 
Marriage Act, 1954 or a Muslim woman wh ose marriage was 
dissolved either under the Indian Divorce Act, 1869 or the 
Indian Special Marriage Act, 1954. The Act does not apply to 
the deserted and separated Muslim wives. The maintenance 
under the Act is to be paid by the husband for the duration of  
the iddat period and this obligation does not extend beyond the 
period of iddat. Once the relationship with the husband has 
come to an end with the expiry of the iddat period, the 
responsibility devolves upon the relatives of the divorcee. The 
Act follows Muslim personal law in determining which relatives 
are responsible under which circumstances. If there are no 
relatives, or no relatives are able to support the divorc ee, then 
the court can order the State Wakf Boards to pay the 
maintenance. 
xxx         xxx   xxx

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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 arrange ments 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 ca nnot 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 reaso nable 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. 
xxx         xxx   xxx 
30. A comparison of these provisions with Section 125 CrPC 
will make it clear that requirements provided in Section 125 
and the purpose, object and scope thereof being to prevent 
vagrancy by compelling those who can do so to support those 
who are unable to support themselves and who have a normal 
and legitimate claim to support are satisfied. If that is so, the 
argument of the petitioners that a different scheme being 
provided under the Act which is equally or more beneficial on 
the interpretation placed by us from the one provided under 
the Code of Criminal Procedure deprive them of thei r right, 
loses its significance. The object and scope of Section 125 
CrPC is to prevent vagrancy by compelling those who are 
under an obligation to support those who are unable to 
support themselves and that object being fulfilled, we find it 
difficult to accept the contention urged on behalf of the 
petitioners.” 
(underlining by me)

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 Although the provisions of the 1986 Act have been upheld 
by this Court, the controversy raised still remains inasmuch 
as the respondent herein sought recourse to Section 125 of the 
CrPC despite the 1986 Act being applicable and the same being 
objected to by the appellant herein on the premise that on the 
enforcement of the 1986 Act, Section 125 of the CrPC ceases 
to apply to a divorced Muslim woman. I shall now analyse the 
relevant provisions of the 1986 Act. 
 
23.  Section 3(1)  begins with a non-obstante clause  as, 
“notwithstanding anything contained in any other law for the 
time being in force ,” a divorced woman shall be entitled to  
reasonable and fair provision and maintenance and other 
benefits in the manner stated therein. The object and purpose 
of a non-obstante clause in a statute can be discussed at this 
stage. A non-obstante clause is usually appended to a Section 
in the beginning with a view to give the enacting part of the 
Section, in case of a conflict, an overriding effect over the 
provision or Act mentioned in the non-obstante clause.  In other 
words, in spite of the provision or the Act mentioned in the non-
obstante clause, the enactment following it will have its full 
operation or that the provisions embraced in the non-obstante 
clause will not be an impediment for the operation of the 
enactment.  Thus, a non-obstante clause is a legislative device 
used by a Parliament or legislature sometimes to give an 
overriding effect to what has been specified in the enacting part 
of a section in case of a conflict with what is contained in the

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non-obstante clause as stated above. Further, 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. Also, 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. [Source:  Principles of Statutory Interpretation 
by Justice G.P. Singh, 15th Edition, Chapter 5.4, p.284] 
 
24.  Recently, a seven-judge Bench of this Court in 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 and the Indian 
Stamp Act, 1899),  (2023) SCC OnLine SC 1666 , in 
paragraph 84 of the said judgment considered the implication 
of a non-obstante clause in a provision with reference to 
Chandavarkar Sita Ratna Rao vs.  Ashalata S. Guram, 
(1986) 4 SCC 447, wherein it was observed as under:  
“84.  xxx 
“67. A clause beginning with the expression 
“notwithstanding anything contained in this Act or in 
some particular provision in the Act or in some 
particular Act or in any law for the time being in force, 
or in any contract” is more often than not appended to

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a section in the beginning with a view to give the 
enacting part of the section in case of conflict an 
overriding effect over the provision of the act or the 
contract mentioned in the non obstante clause. It is 
equivalent to saying that in spite of the provisions of the 
Act or any other Act mentioned in the non obstante 
clause or any contract or document mentioned the 
enactment following it will have its full operation or that 
the provisions embraced in the non obstante clause 
would not be an impediment for  an operation of the 
enactment.” 
 
It was further observed in reference to ICICI Bank Ltd. 
vs. SIDCO Leathers Ltd., (2006) 10 SCC 452 , that even if a 
non-obstante clause has wide amplitude, the extent of its 
impact has to be measured in view of the legislative intention 
and legislative policy.  
 
25.  Further, 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.

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26.  In Aswini Kumar Ghosh vs. Arabinda Bose, AIR 1952 
SC 369, this Court speaking through Chief Justice Patanjali 
Shastri observed that only when there is any inconsistency 
between what is contained in a provision of an enactment and 
a non-obstante clause would make the latter in what is to yield 
to what is stated in the provision following the same. In other 
words, it is only when the enacting part of the statute cannot 
be read harmoniously with what is stated in the non-obstante 
clause, would the non-obstante clause result in yielding to 
what is stated in the enacting part. Similarly, in Municipal 
Corporation, Indore vs. Ratnaprabha, AIR 1977 SC 308, it 
was observed that there should be a clear inconsistency 
between a special enactment or rules and a general enactment.   
 
27.  Reference may also be made to an earlier judgment of the 
Full Bench of the Bombay High Court  in Karim Abdul 
Rehman Shaikh v s. Shehnaz Karim Shaikh, 2000 SCC 
OnLine Bom 446 . Ranjana Desai, J,  (as Her Ladyship then 
was) held that the purpose of the 1986 Act was  not to take 
away a pre-existing right to seek maintenance under the extant 
statutory regime. Its intent could not be to ‘absolve Muslim 
husbands from their obligation to look after them after iddat 
period.’ The upshot of the reasoning was that the 1986 Act 
deliberately used two distinct expressions: maintenance and 
provision. These expressions allow sufficient interpretive 
amplitude to reconcile the Muslim personal law with the 
secular law of maintenance bearing in mind the constitutional

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objective of preserving and promoting the dignity of Muslim 
women. The expression ‘provision’ denotes a forward -looking 
approach. It could not be circumscribed to the period of iddat 
but any limit on the same had to have a nexus to the vagrancy 
of the wife and the sufficiency of maintenance. Therefore, 
Section 3(1)(a) entitles the divorced wife to an amount that 
would be necessary in view of her essential expenses on 
residence, food, clothing, medicine etc. 
 
28.  I find that the 1986 Act was upheld by this Court in 
Danial Latifi on the basis of a purposive interpretation that 
mitigated the possibility of the absurd consequence of denying 
access to justice to a divorced Muslim woman. The premise of 
such an interpretation is that the expression “divorced woman” 
is defined in Section 2(a) of the said Act to mean a Muslim 
woman who has married according to Muslim law and has 
been divorced by, or has obtained divorce from, her husband 
in accordance with Muslim Law.  A plain reading of the 
aforesaid expression would also indicate that the right created 
in favour of a Muslim divorced woman is in addition to and not 
in derogation of any other law for the time being in force. This 
would mean that Section 125 of the CrPC applies to such a  
Muslim woman also and the definition of wife in Section 125 
of the CrPC including a divorced wife (irrespective of the faith 
she follows) would not detract from such a divorced Muslim 
wife also claiming maintenance under that provision.  This is 
despite Section 3 creating new right s insofar as such a

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divorced Muslim woman is concerned.  The scope and ambit of 
the non-obstante clause must be given its full effect and force.  
In other words, the intent of the Parliament which can be 
gathered from the use of such a non-obstante clause  is to 
enhance the right of a divorced Muslim woman in addition to 
what she would have been entitled to under Section 125 of the 
CrPC.  If the intent of the Parliament was otherwise, i.e., to 
curtail the rights of a divorced Muslim woman then the non-
obstante clause would not have found a place in sub-section 
(1) of Section 3 of the 1986 Act.  This is evident from the fact 
that while enacting the 1986 Act, Parliament did not 
simultaneously or at anytime thereafter create any bar for a 
divorced Muslim woman from claiming maintenance under 
Section 125 of the CrPC and thereby constrain her to proceed 
to make a claim only under the provisions of the 1986 Act.   
Neither is there any bar, express or implied  under the 1986 
Act, to the effect that a divorced Muslim woman cannot 
unilaterally seek maintenance under Section 125 of the CrPC.  
One cannot read Section 3 of the 1986 Act containing the non-
obstante clause  so as to restrict or diminish the right to 
maintenance of a divorced Muslim woman under Section 125 
of the CrPC and neither is it a substitute for the latter.  Such 
an interpretation would be regressive, anti -divorced Muslim 
woman and contrary to Articles 14 and 15(1) and (3) as well as 
Article 39(e) of the Constitution of India. Therefore, inspite of 
an option of seeking maintenance under the provisions of the

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1986 Act, Section 125 of the CrPC is applicable to a divorced 
Muslim woman. 
 
29. Similarly, 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.  
 
30.  In my view, 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 , and the same is the 
basis for this Court’s conclusion in Danial Latifi to save the 
1986 Act from the vice of unconstitutionality.  This is because 
nowhere in the judgment of this Court in the aforesaid case is 
there a reference to any bar under the provisions of the 1986 
Act and neither has this Court created any such bar in the 
aforesaid judgment for a divorced Muslim woman to approach 
the Court under Section 125 of the CrPC for maintenance.   
Thus, the non-obstante clause in Sub-section (1) of Section 3 
cannot result in Sections 3 and 4 of the 1986 Act whittling 
down the application of Section 125 of the CrPC and other

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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. 
 
31.  In this context, I note that the learned senior counsel for 
the appellant, Sri Qadri relied upon the language of Sections 5 
and 7 of the 1986 Act to argue that the Parliament intended to 
give the 1986 Act an overriding effect over the secular law on 
maintenance, i.e. Sections 125 to 128 of the CrPC. Sections 5 
and 7 are reproduced for immediate reference: 
“5. Option to be governed by the provisions of sections 125 
to 128 of Act 2 of 1974.- If, on the date of the first hearing of 
the application under sub -section (2) of section 3, a divorced 
woman and her former husband declare, by affidavit or any 
other declaration in writing in such form as may be prescribed, 
either jointly or separately, that they would prefer to be 
governed by the provisions of sections 125 to 128 of the Code 
of Criminal Procedure, 1973 (2 of 1974); and file such affidavit 
or declaration in the court hearing the application, the 
Magistrate shall dispose of such application accordingly. 
Explanation.—For the purposes of this section, "date of the first 
hearing of the application" means the date fixed in the 
summons for the attendance of the respondent to the 
application. 
xxx         xxx   xxx

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7. Transitional provisions. - Every application by a divorced 
woman under section 125 or under section 127 of the Code of 
Criminal Procedure, 1973 (2 of 1974) pending before a 
Magistrate on the commencement of this Act, shall, 
notwithstanding anything contained in that Code and subject  
to the provisions of section 5 of this Act, be disposed of by such 
Magistrate in accordance with the provisions of this Act.” 
 
32.  I find that Section 5 provides for a situation where a 
Muslim woman and her former husband decide to voluntarily 
elect to pursue the remedies under Sections 125 to 128 of the 
CrPC by way of a written application on the first date of hearing 
of an application under Section 3 of the 1986 Act.  The 
provision seeks to provide an option that can be mutually 
exercised by the Muslim woman and her former husband. The 
deliberate use of the words ‘option’ and ‘former husband’ 
demonstrates that Section 5 does not statutorily confine the 
circumstances under which the claim of maintenance of a 
divorced Muslim woman can be governed under the secular 
law of maintenance. Similarly, Section 7, being a transitional 
provision, only determines that every pending application 
under Section 125 of the CrPC for maintenance at the time of 
commencement of the 1986 Act would be disposed of in 
accordance with the provisions of 1986 Act. The purpose of a 
transitional provision is to mitigate uncertainty from the minds 
of the litigants who were faced with the peculiar situation with 
respect to pending maintenance applications and the 
possibility of fresh applications being filed under the 1986 Act 
as per the option of the parties .  The use of the expression in 
Section 7 of the 1986 Act ‘notwithstanding anything contained

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in that Code, ’ with respect to  the CrPC does not indicate the 
intent to abrogate the independent right of a Muslim woman, 
as a victim of neglect or destitution, to claim maintenance from 
her husband. Moreover, Section 7 is subject to Section 5 of the 
said Act. Also, a transitional provision is of a temporary nature. 
On the strength of a transitional provision the main Act i.e. 
1986 Act cannot be interpreted in a manner so as to restrict 
the rights of a divorced Muslim woman to other available 
remedies such as under Section 125 of the CrPC. 
 
33.  This Court in Danial Latifi was alive to the hardship that 
would befall Muslim women if the provisions of the 1986 Act 
were construed in a manner that deprived them of the 
protection that was equal to the protection afforded to non -
Muslim women under Section 125 of the CrPC. It was reasoned 
that to make a Muslim woman 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 could not be reasonable and a fair 
substitute for the provisions of Section 125 of the CrPC. In this 
respect, the observations of this Court deserve to be quoted in 
full: 
“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 ma intenance 
through others. If for any reason the interpretation placed by

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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, th ereafter 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 r ight 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 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 Cod e 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 w omen 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 violati ve 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

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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.” 
 
34.  Therefore, it was held that the Muslim husband has two 
separate and distinct obligations, viz., (i) to make a "reasonable 
and fair provision" for his divorced wife  and (ii)  to provide 
"maintenance" for her.  Contrary to limiting the duration of any 
such "provision" and "maintenance" to only the iddat period, 
the emphasis of Section 3(1)(a) specifically and the 1986 Act 
generally is to mandate the time for concluding the payment of 
provision and maintenance within the iddat period but not 
only restricted for the said period . This Court applied its 
judgment in Danial Latifi in Sabra Shamim v s. Maqsood 
Ansari, (2004) 9 SCC 616 wherein the High Court’s judgment 
limiting the entitlement of the divorced wife to iddat period only 
was set aside on the ground that the liability “to pay 
maintenance is not confined to iddat period”. 
 
35.  In other words, the constitutionality of the 1986 Act was 
upheld only on the basis of the expansive, purposive and 
progressive interpretation that harmonised the rights under 
secular and personal law. This is consistent with the settled 
norms of judicial review of legislative enactments whereby this 
Court reads a provision that is found to offend a constitutional 
guarantee to save its constitutionality, vide Binoy Viswam vs.

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Union of India, (2017) 7 SCC 59, Pr. 83.  Therefore, while 
extending the scope of ‘reasonable and fair provision’ in the 
1986 Act to the entire lifetime of Muslim women, it was noted 
in paragraph 28 of Danial Latifi that ‘nowhere has Parliament 
provided that reasonable and fair provision and maintenance 
is limited only for the iddat period.’ Thus, it was held that an 
interpretative approach de hors the social facts and questions 
touching upon basic human rights should invariably  be 
decided on constitutional considerations. Therefore, the 
Parliament’s enactment cannot be construed to intend unjust 
consequences according to this Court.  
This is because under the provision of 1986 Act if during 
iddat period , no provision is made for the entire life of the 
divorced wife or if the same is inadequate particularly with the 
passage of time then Section 125 of the CrPC can be resorted 
to.   
 From the above, it can also be noted that if Section 3 read 
with Section 4 excludes the liability of the husband of a Muslim 
woman then there is no reason as to why his liability under 
Section 125 of the CrPC must also be excluded.   
 
36.  The 1986 Act thus continues to operate within the same 
juridical compass as the judgment in Shah Bano  and the 
reasons for upholding the constitutionality of Danial Latifi 
cannot be lost sight of. The crux of the reasoning in Danial 
Latifi is that the 1986 Act is a social welfare legislation that 
seeks to provide an additional right and thereby, an additional

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remedy. Danial Latifi implicitly recognises the cardinal 
principle of non -retrogression that prohibits the State  from 
taking measures or steps that deliberately lead to retrogression 
on the enjoyment of rights either under the Constitution or 
otherwise vide Navtej Singh Johar vs. Union of India, (2018) 
10 SCC 1, Pr. 202. I therefore reiterate that the 1986 Act does 
not take away rights that divorced Muslim women have either 
under personal law or under Section 125 of the CrPC. I do not 
find any inconsistency between the provisions of the 1986 Act 
and Section 125 of the CrPC. Thus, a Muslim divorced wife is 
entitled to maintenance under Section 125 CrPC irrespective 
of her personal law, as reiterated in Shabana Bano vs. Imran 
Khan, 2009 (14) SCALE 331. Such a construction would not 
defeat the legislative intent and diminish the scope of 
additional protection afforded to Muslim women under the 
1986 Act.  
 
37.  I note that the fixation of the three -month time limit for 
disposal of applications under the 1986 Act affords speedy 
justice and subserves the salutary aim of women’s welfare and 
social security. Thus, the 1986 Act expands the protection of 
women and ought to be applied as such.  I find that remarriage 
of a divorced Muslim woman does not nullify her claim to a 
just settlement under the 1986 Act, vide Abdul Hameed v s. 
Fousiya, (2004) 3 KLT 1049  wherein it was held that a 
husband cannot recover the settlement amount awarded 
under the 1986 Act merely because his ex-wife gets remarried.

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This finding is consistent with our legislative regime of 
protecting the rights of married women against matrimonial 
harassment, vide Juveria Abdul Majid Patni v s. Atif Iqbal 
Mansoori, (2014) 10 SCC 736. 
 
Access to Justice: 
38.  The question of interpreting Section 3 of the 1986 Act 
should also be construed from the perspective of access to 
justice. Therefore, a technical or pedantic interpretation of the 
1986 Act would stultify not merely gender justice but also the 
constitutional right of access to justice for the aggrieved 
Muslim divorced women who are in dire need of maintenance. 
This Court would not countenance unjust or Faustian 
bargains being imposed on women. The emphasis is on 
sufficient maintenance, not minimal amount. After all, 
maintenance is a facet of gender parity and enabler of equality, 
not charity. It follows that a destitute Muslim wom an has the 
right to seek maintenance under Section 125 of the CrPC  
despite the enactment of the 1986 Act.  Thus, an application 
for maintenance under Section 125 of the CrPC would not 
prejudice another application under Section 3 of the 1986 Act 
insofar as  the latter is additional in nature and does not 
pertain to the same requirements sought to be provided for by 
Section 125 of the CrPC. One cannot be a substitute for or 
supplant another ; rather it is in addition to and not in 
derogation of the other.

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39.  In this context, it would be apposite to take note of this 
Court’s pertinent observations in Rana Nahid @ Reshma @ 
Sana vs. Sahidul Haq Chisti, (2020) 7 SCC 657. The appeal 
before this Court arose out of a judgment passed by the High 
Court of Rajasthan, by which the order passed by the Family 
Court, converting the application for maintenance under 
Section 125 of the CrPC into Section 3 of the 1986 Act  and 
granting maintenance,  was set aside. Banumathi, J. in her 
judgment considered the question which fell for consideration, 
namely, whether the Family Court had jurisdiction to try an 
application filed by a Muslim divorced woman for maintenance 
under Section 3 of the Act.   After considering the provisions of 
the 1986 Act as well as the relevant provisions of the Family 
Courts Act, 19 84, it was observed in paragraph 25 of the 
judgment that an application under Section 3(2) of the 1986 
Act by the divorced wife has to be filed before the competent 
Magistrate having jurisdiction if she claims maintenance 
beyond the  iddat period. Even if the Family Court has been 
established in that area, the Family Court , not having been 
conferred the jurisdiction under Section 7 of the Family Courts 
Act, 1984 to entertain an application filed under Section 3 of 
the 1986 Act, the Family Court shall have no jurisdiction to 
entertain an application under Section 3(2) of the 1986 Act. 
The Family Court, therefore, cannot convert the petition for 
maintenance under Section 125 of the CrPC to one under 
Section 3 or Section 4 of the 1986 Act. Accordingly, the High 
Court’s view was affirmed and the appeal was dismissed.

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However, Indira Banerjee , J.  disagreeing with the 
aforesaid view observed that the Family Court has the 
jurisdiction to convert the application for maintenance filed 
under Section 125 of the CrPC into an application under 
Section 3 of the 1986 Act and to decide the same.  
 
In view of the difference of opinion between the two 
learned Judges, the matter was placed before Hon’ble the Chief 
Justice of India for referring the matter to a larger Bench.  
However, the larger Bench of three -Judges by its order dated 
22.09.2022 dispos ed of the appeal without going into the 
questions referred to the said Bench.   
 
Be that as it may, what is of relevance from the aforesaid 
case, is Banumathi, J.’s reasoning that the 1986 Act is not 
contrary to the object of Chapter IX of the CrPC as it provides 
remedies to a divorced Muslim wom an. Therefore, the  non-
obstante clause, occurring in Sections 3(1), 4(1) and 7 cannot 
be lightly assumed to bring in the effect of supersession  of 
Section 125 of the CrPC and cannot be allowed ‘to demolish or 
extinguish the existing right unless the legislative intention is 
clear, manifest and unambiguous ’.  I also find force in Indira 
Banerjee J’s reasoning that the 1986 Act manifests the 
Parliament’s intent to protect and further the rights of Muslim 
women. Placing reliance upon the right to be treated equally 
irrespective of religion, as it is enshrined in Article 2 of  the 
Universal Declaration of Human Rights and Articles 14 and 26 
of the International Covenant on Civil and Political Rights, the

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learned judge held that Muslim women cannot be afforded a 
lesser degree of protection than other classes of women. It was 
also held that: 
“57. The Convention on the Elimination of All Forms of 
Discrimination against Women, 1979, commonly referred to 
as CEDAW, recognises amongst others, the right of women to 
equality irrespective of religion, as a basic human right. Article 
2 of  CEDAW exhorts State parties to ensure adoption of a 
woman-friendly legal system and woman -friendly policies and 
practices. 
 
58. As a signatory to  CEDAW, India is committed to adopt a 
woman-friendly legal system and woman -friendly policies and 
practices. The 1986 Act for Muslim Women, being a 
post CEDAW law, this Court is duty -bound to interpret the 
provisions of the said Act substantively, liberally, and 
purposefully, in such a manner as would benefit women of the 
Muslim community.” 
 
40.  Therefore, the position of law with regard to harmonious 
interpretation of Sections 125-128 of the CrPC and the 1986 
Act can be summarised as under: 
i. There cannot be a disparity among st divorced 
Muslim women on the basis of the law under which 
they were married or divorced in the matter of their 
maintenance post -divorce. The definition of 
“divorced woman” under the 1986 Act would 
include only a Muslim woman who has married 
according to Muslim law but also divorced under 
that law. But if a Muslim woman has been married 
under the Special Marriage Act, such a Muslim 
woman who is divorced, cannot get the benefit of 
the 1986 Act.  Such a Muslim woman , who is 
divorced, would have to proceed either under the

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provisions of the Special Marriage Act, 1954 and/or 
under Section 125 of the CrPC. Therefore, the 
protective provision of Section 125 ought to remain 
available to every divorced Muslim woman to avoid 
the absurd outcome of a section of Muslim women 
being left remediless  under the 1986 Act . As a 
corollary, it is held that such women who are 
covered under the 1986 Act are also entitled to the 
benefit of Section 125 of the CrPC.  Further, there 
can be no bar under the Explanation (b) to Section 
125 of the CrPC so as to exclude a ny Muslim 
woman who has been divorced or has obtained a 
divorce from her husband and has not remarried. 
This is irrespective of the 1986 Act being applicable 
to only such divorced Muslim woman who qualifies 
within the definition of divorced woman under 
Section 2(a) of the 1986 Act. 
 
ii. Section 3 of the 1986 Act provides for a reasonable 
and fair provision of maintenance to a divorced 
Muslim woman only on certain terms and 
conditions within the iddat period by her husband.  
Once the iddat period expires, the personal law 
obligation to maintain the divorced Muslim woman 
by the husband ceases. Per contra, under Section 
125 of the CrPC, any divorced wife who has not 
remarried is entitled to maintenance by her ex -

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husband who has sufficient means but has 
neglected or refused to maintain her.  
 
iii. Further, 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.  
 
iv. 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

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context of the obligations of a former husband and 
the rights of a divorced Muslim woman . This 
amendment to Section 125 of the CrPC being 
subsequent to the enforcement of the 1986 Act, is 
so significant that it virtually makes Section 3 of 
the 1986 Act very narrow and insignificant 
although the expression “provision” under Section 
3(1) of the 1986 Act has been broadly interpreted 
by this Court in Danial Latifi.  
 
v. I, therefore, hold that Section 125 of the CrPC 
cannot be excluded from its application to a 
divorced Muslim woman  irrespective of the law 
under which she is divorced. There cannot be 
disparity in receiving maintenance on the basis of 
the law under which a woman is married or 
divorced. The same cannot be a basis for 
discriminating a divorced woman entitled to 
maintenance as per the conditions stipulated 
under Section 125 of the CrPC or any personal or 
other law such as the 1986 Act. I also note that 
although the provisions of the 1986 Act have been 
upheld by a Constitution Bench of this Court in the 
case of Danial Latifi, the same would not in any 
way restrict the application of Section 125 of the 
CrPC to a divorced Muslim woman.

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vi. Further, under Section 5 of the 1986 Act, if, on the 
date of the first hearing of the application under 
sub-section (2) of Section 3, a divorced woman and 
her husband declare by an affidavit or any other 
declaration in writing in the form prescribed, either 
jointly or separately that they would prefe r to be 
governed by the provisions of Section 125 to 
Section 128 of the CrPC and file such an affidavit 
or declaration in the Court hearing the application, 
the Magistrate shall dispose of such application 
accordingly.  Therefore, the 1986 Act itself provides 
for the applicability of Sections 125 to 128 of the 
CrPC, even when an application under sub-section 
(2) of Section 3 is made seeking relief as per sub -
section (1) of Section 3.  However, the said option 
given to the divorced woman and her former 
husband mandates that there must be a 
declaration which is ad idem for the purpose of 
applying the provisions of Sections 125 to 128 of 
the CrPC, when an application is made under sub-
section (2) of Section 3 of the 1986 Act. This would 
imply that if there is no such declaration given then 
Sections 125 to 128 of the CrPC would not apply 
when an application is made under sub-section (2) 
of Section 3 of the 1986 Act  by a divorced Muslim 
woman. This again puts a fetter on the applicability 
of Sections 125 to 128 of the CrPC to such a

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divorced woman inasmuch it is necessary for her 
former husband to concur to be governed by the 
provisions of Sections 125 to 128 of the CrPC.  This 
means that an option is given to the former 
husband of a divorced Muslim woman to concur or 
not to do so.  In other words, if there is no such 
concurrence by the former husband then the 
aforesaid provisions of the CrPC would not be made 
applicable to a proceeding initiated under sub -
section (2) of Section 3. Such a fetter, in my view, 
is of no consequence if a Muslim divorced woman 
can unilaterally maintain an application under 
Section 125 of the CrPC before the Magistrate or 
the Family Court, in which event when she 
unilaterally files such an application, there is no 
necessity of seeking a declaration from the former 
husband as required under Sectio n 5 of the 1986 
Act. 
 
vii. On the other hand, 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, because 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

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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. 
 
viii. While under the CrPC  prior to CrPC of 1973 , the 
alteration of maintenance was considered on the 
basis of change in circumstances  but Section 
127(3)(b) of the CrPC, 1973 specifically takes into 
account cases where a divorced woman has had the 
benefit of maintenance under the customary or 
personal law. In a case of a Hindu divorced woman, 
it could also include the Hindu Marriage Act, 1955 
or Hindu Adoption and Maintenance Act, 1954 . In 
the same manner in the case of a Muslim divorced 
woman, the 1986 Act is in the nature of a quasi-
personal law. Section 127(3)(b), therefore, balances 
the obligation to pay maintenance by a former 
husband of a Muslim woman if he has done so 
under the provisions of any customary or personal 
law which would also include the 1986 Act 
applicable to the parties.  In such an event, there 
could always be an alteration in the allowance 
when there is a change in the circumstances of any 
person receiving, under Section 125 of the CrPC, a

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monthly allowance towards the interim 
maintenance or maintenance under the said 
Section payable to a divorced wife.  In which event, 
the alteration could be made in accordance with 
Section 127 of the CrPC.   
  
ix. Section 127 would apply only when there has 
already been an order for maintenance or interim 
maintenance passed under Section 125 of the CrPC 
and if there is a subsequent order passed under the 
provisions of the 1986  Act. Then,  an order for 
alteration in the maintenance under Section 125 of 
the CrPC could be made by the Magistrate. Section 
127(3)(b) would however not detract a divorced 
Muslim woman from filing an application under 
Section 125 of the CrPC, by exercising her option 
to do so  even in the absence of invoking the 
provisions of the 1986 Act. In other words, such a 
vulnerable woman cannot be constrained to seek 
remedy only under the provisions of the 1986 Act. 
The choice remains with her to be exercised in 
accordance with law and discretion.  However, if a 
divorced Muslim woman already  has an order 
passed under Section 125 of the CrPC, and 
thereafter also files an application under Section 3 
or Section 4 of the 1986 Act and an order is made 
under the said Act also, in such an event, there

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could be an alteration in the order of payment for 
maintenance or interim maintenance , as the case 
may be, under Section 127 of the CrPC.  This is in 
order to ensure that there is no double benefit 
which would be availed by a divorced Muslim 
woman under Section 125 of the CrPC as well as 
under the 1986 Act.   
 
x. Hence, what emerges is that the 1986 Act is not a 
substitute for Section 125 of the CrPC and nor has 
it supplanted it and both can operate 
simultaneously at the option of a divorced Muslim 
woman as they operate in different fields. As I find 
no conflict between the provisions of the 1986 Act, 
which is a piece of legislation in the nature of quasi-
personal law insofar as the divorced Muslim wife is 
concerned and Section 125 of the CrPC which is a 
statutory provision applicable to women belonging 
to all faiths therefore the latter cannot be restricted 
in its operation to divorced Muslim women.  I find 
that if Section 125 of the CrPC is excluded from its 
application to a divorced Muslim woman, it would 
be in violation of Article 15(1) of the Constitution of 
India which states that the State shall not 
discriminate against any citizen only on the ground 
of religion, race, caste, sex, place of birth or any of

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them. Further, our interpretation is consistent with 
the spirit of Article 15(3) of the Constitution.  
 
2019 Act: 
41.  At this juncture , Section 5 of the Muslim Women 
(Protection of Rights on Marriage) Act, 2019 (“2019 Act”) merits 
consideration. 
“5. Subsistence allowance. - Without prejudice to the 
generality of the provisions contained in any other law for the 
time being in force, a married Muslim woman upon whom talaq 
is pronounced shall be entitled to receive from her husband 
such amount of subsistence allowance, for her and dependent 
children, as may be determined by the Magistrate.” 
 
Section 5 extends to Muslim women upon whom talaq is 
pronounced. Talaq is defined in Section 2(c) as ‘talaq-e-biddat’ 
or any other similar form of talaq having the effect of 
instantaneous and irrevocable divorce pronounced by a 
Muslim husband which is void and illegal as per Section 3 of 
the said Act.’ In other words, married Muslim woman can seek 
subsistence allowance if talaq, as defined in the 2019 Act, is 
pronounced on her.  
 
In case a woman has been divorced in a valid manner, she 
can approach the Magistrate under the 1986 Act but if she has 
been the victim of the mischief defined under the 2019 Act, 
then her right to subsistence allowance is secured through 
Section 5 of the 2019 Act. The intent of the Parliament is clear: 
it seeks to provide adequate remedies to women from economic 
deprivation that may result from marital discord, irrespective

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of their status as a married or divorced woman. Therefore, 
prior to a divorce in accordance with law , a married woman 
has access to maintenance under the general law, i.e., Section 
125 of the CrPC and under a special law, i.e., 2019 Act. When 
divorce is void and illegal, such a Muslim woman can also seek 
remedy under Section 125 of the CrPC. 
 
Maintenance and the Institution of Marriage : A Broader 
Perspective. 
 
42.  Before parting with this case, I pose a question to myself. 
What is the position of a wife after her marriage in Indian 
Society?  This Court, speaking through Murtaza Fazal Ali , J. 
in Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa 
Yasinkh, AIR 1981 SC 1972, had acknowledged the 
paradigm shift from viewing maintenance as a mere charity to 
a matter of parity and rights, essential for women. It is 
necessary to extract the pertinent observations as under:  
“14. ... the outmoded and antiquated view that the object of s. 
488 was to provide an effective and summary remedy to provide 
for appropriate food, clothing and lodging for a wife. This 
concept has now become completely out dated and absolutely 
archaic. After the International Year of Women when all th e 
important countries of the world are trying to give the fair sex 
their rightful place in society and are working for the complete 
emancipation of women by breaking the old shackles and 
bondage in which they were involved, it is difficult to accept a 
contention that the salutary provisions of the Code are merely 
meant to provide a wife merely with food, clothing and lodging 
as if she is only a chattel and has to depend on the sweet will 
and mercy of the husband. …” 
 
43.  In this context, I would like to advert to the vulnerability 
of married women in India who do not have an independent

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source of income  or who do not have access to monetary 
resources in their household s particularly for their personal 
expenses. In Indian society, it is an established practice that 
once a daughter is married, she resides with her husband 
and/or his family unless due to exigency of career or such other 
reason she has to reside elsewhere. In the case of a woman who 
has an independent source of income, she may be financially 
endowed and may not be totally dependent on her husband 
and his family. But what is th e position of a married woman 
who is often referred to as a “homemaker” and who does not 
have an independent source of income, whatsoever, and is 
totally dependent for her financial resources on her husband 
and on his family ?  It is well -known that such an Indian 
homemaker tries to save as much money as possible from the  
monthly household budget, not only to augment the financial 
resources of the family but possibly to also save a small portion 
for her personal expenses.  Such a practice is followed in order 
to avoid making a request to the husband or his family for her 
personal expenses. Most married men in India do not realise 
this aspect of the predicament such Indian homemakers face 
as any request made for expenses may be bluntly turned down 
by the husband  and/or his family . Some husbands are not 
conscious of the fact that the wife who has no independent 
source of finance is dependent on them not only emotionally 
but also financially. On the other hand, a wife  who is referred 
to as a homemaker is working throughout the day for the 
welfare of the family without expectin g anything in return

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except possibly love and affection, a sense of comfort and 
respect from her husband and his family which are towards her 
emotional security . This may also be lacking in certain 
households.  
 
44.  While the contributions of such a homemaker get judicial 
recognition upon her unfortunate death while computing 
compensation in cases under the Motor Vehicles Act, 1988 vide 
Kirti vs. Oriental Insurance Co. Ltd., (2021) 2 SCC 166, the 
services and sacrifices of homemakers for the economic well -
being of the family, and the economy of the nation, remain 
uncompensated in large sections of our society.  
 
45. Therefore, I observe that an Indian married man must 
become conscious of the fact that he would have to financially 
empower and provide for his wife, who does not have an 
independent source of income, by making available financial 
resources particularly towards her personal needs; in other 
words, giving access to his financial resources. Such financial 
empowerment would place such a vulnerable wife in a more 
secure position in the family. Those Indian married men who 
are conscious of this aspect and who make available their 
financial resources for their spouse towards their personal 
expenses, apart from household expenditure, possibly by 
having a joint bank account or via an ATM card , must be 
acknowledged. 
 
46.  Another aspect of vulnerability of a married Indian 
woman is regarding her security of residence in her

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matrimonial home. In this context in the case of Prabha Tyagi 
vs. Kamlesh Devi , (2022) 8 SCC 90 , this Court while 
considering Section 17 along with other provisions of the 
Domestic Violence Act, 2005 opined as under: 
“60. In our view, the question raised about a subsisting 
domestic relationship between the aggrieved person and the 
person against whom the relief is claimed must be interpreted 
in a broad and expansive way, so as to encompass not only a 
subsisting domestic relationship in praesenti but also a past 
domestic relationship. Therefore, Parliament has intentionally 
used the expression “domestic relationship” to mean a 
relationship between two persons who not only live together in 
the shared household but also between two persons who “have 
at any point of time lived together” in a shared household.” 
 
 
47. Thus, both ‘financial security’ as well as ‘security of 
residence’ of Indian women have to be protected and enhanced. 
That would truly empower such Indian women who are 
referred to as ‘homemakers’ and who are the strength and 
backbone of an Indian family which is the fundamental unit of 
the Indian society which has to be maintained and 
strengthened. It goes without saying that a stable family which 
is emotionally connected and secure gives stability to the 
society for, it is within the family that precious values of life 
are learnt and built. It is these moral and ethical values which 
are inherited by a succeeding generation which would go a long 
way in building a strong Indian society which is the need of the 
hour. It is needless to observe that a strong Indian family and 
society would ultimately lead to a stronger nation. But, for that 
to happen, women in the family have to be respected and 
empowered!

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In view of the aforesaid  discussion, the Criminal Appeal 
stands dismissed. 
 
 
………………………………..J. 
                                                 [B.V. NAGARATHNA] 
 
New Delhi; 
July 10, 2024

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IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION 
CRIMINAL APPEAL NO. 2842  OF 2024 
(Arising out of Special Leave Petition (Crl.) No.1614 of 2024) 
 
 
MOHD. ABDUL SAMAD    … APPELLANT 
VERSUS 
STATE OF TELANGANA & ANOTHER … RESPONDENTS 
 
 
 
O R D E R 
 
What emerges from our separate but concurring 
judgments are the following conclusions: 
 
a) Section 125 of the CrPC applies to all married women 
including Muslim married women. 
 
b) Section 125 of the CrPC applies to all non-Muslim 
divorced women. 
 
c) Insofar as divorced Muslim women are concerned, - 
i) 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.

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ii) 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. 
 
iii) If Section 125 of the CrPC is also resorted to by a 
divorced Muslim wom an, 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. 
 
d) The 1986 Act could be resorted to by a divorced Muslim 
woman, as defined under the said Act , by filing an 
application thereunder which could be disposed of in 
accordance with the said enactment. 
 
e) In case of an illegal divorce as per the provisions of the 
2019 Act then, 
 
i) 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.

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ii)  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. 
iii)  The provisions of the 2019 Act provide remedy in 
addition to and not in derogation of Section 125 of the 
CrPC. 
 
f)  The criminal appeal is dismissed. 
 
 
 
                                    ………..…………………………..J. 
                             [B.V. NAGARATHNA] 
 
 
 
 
 
…...………………………………..J. 
                                           [AUGUSTINE GEORGE MASIH] 
 
 
New Delhi; 
July 10, 2024