Section 125 CrPC applies to Muslim Women

This question has now been authoritatively answered by the Apex Court in favour of Muslim married and divorced women.

In a landmark judgment rendered recently on 10^th July 2024 in the case of Mohd. Abdul Samad v. State of Telangana the Supreme Court held inter alia that section 125 CrPC applied to Muslim married and divorced women too.
(You can download the whole SC judgment here:
https://webapi.sci.gov.in/supremecourt/2024/3533/3533_2024_11_1501_53688_Judgement_10-Jul-2024.pdf)

It was contended by the Muslim husband that the provisions of section 125 of CrPC do not prevail in light of the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It was further contended that even if a “divorced Muslim woman” seeks to move the court under the secular provision of section 125 CrPC, it would not be maintainable, rather the correct procedure would be to file an application under Section 5 of the 1986 Act, which was not done in the present case.

Rejecting these contentions the Court held that the 1986 Act was not in derogation of section 125 CrPC but in addition to the said provision. Consequently, section 125 CrPC as well as the provisions of the 1986 Act are applicable to Muslim women married and divorced under Muslim law. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws.

The operative part of the judgment is as under:

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.

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 woman, as per the definition under the 1986 Act, then any order passed under the provisions of 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC.

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.

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.

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Created By :
Prof Madan
Director, Delhi Law Academy