A divorced Muslim woman can file a claim for maintenance from her former husband, the Supreme Court ruled on Wednesday, reported Bar and Bench.
A bench of Justices BV Nagarathna and Augustine George Masih held this in two separate but concurring judgements. Justice Nagarathna’s judgement said that Section 125 of the Code of Criminal Procedure applies to all women, not just married ones.
Part of Section 125 of the Code of Criminal Procedure says that if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, a magistrate can direct him to give her a monthly allowance. The amount of allowance is decided by the magistrate.
While the Code of Criminal Procedure has been replaced by the Bharatiya Nagarik Suraksha Sanhita, the older law remains applicable for cases filed before July 1.
The bench was hearing a plea by a man named Mohammed Abdul Samad, who had challenged an order by a family court in Telangana to pay maintenance of Rs 20,000 to his former wife.
The woman had moved the family court contending that Samad had divorced her through instant triple talaq in 2017.
Instant triple talaq, or Talaq-e-Biddah, was declared unconstitutional by the Supreme Court in 2019. In this practice, a Muslim man could instantly divorce his wife by pronouncing “talaq” three times.
Samad had appealed against the lower court’s order in the High Court which, while disposing it of on December 13, said that “several questions are raised which need to be adjudicated”. The High Court had directed Samad to pay Rs 10,000 to his former wife as interim maintenance.
In his plea in the Supreme Court, Samad contended that the Muslim Women (Protection of Rights on Divorce) Act, 1986, which is a Special Act, would take precedence over the provisions of Section 125 of the Code of Criminal Procedure, which is a general Act, reported The Indian Express.
The Muslim Women (Protection of Rights on Divorce) Act, 1986, had nullified a Supreme Court judgement of 1985 that had held that Section 125 of the Code of Criminal Procedure is a secular provision applicable to Muslim women too.
The special Act allows the magistrate to decide on the matter of payment of subsistence allowance.
The court, however, held that the 1986 law would not prevail over the Code of Criminal Procedure.
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