Breaking Barriers: SC Ensures Maintenance for Divorced Muslim Women

Yesterday, on July 10, the Supreme Court delivered a landmark judgement relevant and crucial to women, particularly Muslim women, across the country.


In this case, the Supreme Court considered a Muslim man’s plea against paying maintenance under Section 125 of the CrPC, arguing that the wife could not apply under Section 125 since she would be governed by personal laws and not the CrPC.

The case emanated from a family court order that, in a Section 125 CrPC petition preferred by a Muslim woman, directed the petitioner (her husband) to pay interim maintenance @ Rs.20,000 per month. This order was challenged before the High Court of Telangana on the basis that the parties got divorced as per personal laws in 2017, and there was a divorce certificate to that effect, but the same was not considered by the Family Court.

The High Court did not, however, reverse the interim maintenance directive. Given the various factual and legal issues raised, the monthly amount was lowered from Rs. 20,000 to Rs. 10,000, to be paid starting on the petition date. The petitioner was directed to pay half of the arrears by January 24, 2024, and the remaining amount by March 13, 2024. In addition, the Family Court was requested to attempt resolving the primary matter in less than six months.

Aggrieved, the petitioner approached the Supreme Court. After hearing initial submissions, the Court appointed Senior Advocate Gaurav Agarwal to assist the matter.

Conclusions from the judgement

The Court established that s125 is a secular provision that would apply to all women, including Muslim women, regardless of their faith, ‘provided that she is able to prove the requisites encompassed by such statute. ‘

Additionally, the Supreme Court clarified that Section 3 of 1986 cannot be read as to ‘restrict or diminish’  maintenance under s125 of the CrPC, and neither is it a substitute for the latter, as such a regressive interpretation would be violative of Articles 14 and 15(1) and (3), along with Article 39 (e) of the Constitution of India. The Court concluded that both the 1986 act and s125 can be read simultaneously at the option of the divorced women.

“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 them. Further, our interpretation is consistent with the spirit of Article 15(3) of the Constitution.”

Justice Masih clarified that Section 3 begins with a non-observant clause; therefore, it is not a substitution but an additional remedy referring to various precedents.

“this Act does not bar…it is the choice of the person who had applied or moved an application under 125…there is no statutory provision provided under the Act of 1986 which says that 125 is not maintainable”.

“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.”

The Court also explicitly clarified that no matter the method in which a divorce has taken place, the illegal method of Triple Talaq was abolished and criminalised by the Muslim Women (Protection of Rights on Marriage) Act 2019.

“There cannot be a 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.”

This legal position flows from Mohd Ahmed Khan v. Shah Bano Begum factum of divorce was not relevant, and every Muslim woman was entitled to maintain a Section 125 CrPC petition.

The Court noted that if maintenance is provided under s125, then the Magistrate should consider it to alter the maintenance accordingly under S127(3)(b)

Implications of the Judgment

This ruling is a reaffirmation of the secular ethos embedded in Indian law, ensuring that all individuals, irrespective of their religious background, have access to basic financial support mechanisms. It underscores the principle that personal laws must coexist with the overarching framework of justice and equity provided by secular laws like the CrPC.


The Supreme Court’s decision in Mohd Abdul Samad v. The State of Telangana & Anr. is a significant step towards ensuring gender justice and upholding the constitutional promise of equality and protection for all citizens. By affirming the applicability of Section 125 CrPC to divorced Muslim women, the Court has reinforced the secular and inclusive nature of India’s legal system.

By Aditya Gupta (Intern)
OP Jindal Global University

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