The Supreme Courtroom has held {that a} Muslim lady, who has been illegally divorced by the pronouncement of triple talaq, is entitled to hunt upkeep from her husband as per Part 125 of the Code of Felony Process.
This proper is along with the treatment offered underneath the Muslim Ladies (Safety of Rights on Marriage) Act 2019, which specifies {that a} lady, who has been subjected to triple talaq, might be entitled to say subsistence allowance from her husband.
It might be famous the 2019 Act criminalised the observe of triple talaq which was declared as void by the Supreme Courtroom in 2017.
The bench comprising Justices BV Nagarathna and Augustine George Masih was deciding the query whether or not a Muslim lady might take recourse to Part 125 CrPC to hunt upkeep. Whereas answering the query within the affirmative, the judgment authored by Justice Nagarathna mentioned the rights of ladies who’ve been illegally divorced.
“When divorce is void and unlawful, such a Muslim lady can even search treatment underneath Part 125 of the CrPC,” Justice Nagaratna acknowledged.
The judgment specified that in case of an unlawful divorce as per the provisions of the 2019 Act then,
i) reduction underneath Part 5 of the mentioned Act may very well be availed for searching for subsistence allowance or, on the choice of such a Muslim lady, treatment underneath Part 125 of the CrPC may be availed.
ii) If throughout the pendency of a petition filed underneath Part 125 of the CrPC, a Muslim lady is ‘divorced’ then she will be able to take recourse underneath Part 125 of the CrPC or file a petition underneath the 2019 Act.
iii) The provisions of the 2019 Act present treatment along with and never in derogation of Part 125 of the CrPC.
The Courtroom additionally held that Muslim ladies, who acquired married underneath the Particular Marriage Act 1954, are additionally entitled to invoke Part 125 CrPC.
“In case a girl has been divorced in a legitimate method, she will be able to method the Justice of the Peace underneath the 1986 Act but when she has been the sufferer of the mischief outlined underneath the 2019 Act, then her proper to subsistence allowance is secured by Part 5 of the 2019 Act. The intent of the Parliament is evident: it seeks to supply enough treatments to ladies from financial deprivation which will end result from marital discord, regardless of their standing as a married or divorced lady. Subsequently, previous to a divorce in accordance with regulation, a married lady has entry to upkeep underneath the final regulation, i.e., Part 125 of the CrPC and underneath a particular regulation, i.e., 2019 Act. When divorce is void and unlawful, such a Muslim lady can even search treatment underneath Part 125 of the CrPC.”
Conclusions from the Judgment
The conclusions rising from the concurring judgments of the judges are as follows :
a) Part 125 of the CrPC applies to all married ladies together with Muslim married ladies.
b) Part 125 of the CrPC applies to all non-Muslim divorced ladies.
c) Insofar as divorced Muslim ladies are involved, –
i) Part 125 of the CrPC applies to all such Muslim ladies, married and divorced underneath the Particular Marriage Act along with treatments out there underneath the Particular Marriage Act.
ii) If Muslim ladies are married and divorced underneath Muslim regulation then Part 125 of the CrPC in addition to the provisions of the 1986 Act are relevant. Choice lies with the Muslim divorced ladies to hunt treatment underneath both of the 2 legal guidelines or each legal guidelines. It’s because the 1986 Act will not be in derogation of Part 125 of the CrPC however along with the mentioned provision.
iii) If Part 125 of the CrPC can be resorted to by a divorced Muslim lady, as per the definition underneath the 1986 Act, then any order handed underneath the provisions of 1986 Act shall be considered underneath Part 127(3)(b) of the CrPC. [This means that if any maintenance has been given to Muslim wife under the personal law, then it shall be taken into account by the Magistrate to alter the maintenance order under Section 127(3)(b)]
e) In case of an unlawful divorce as per the provisions of the 2019 Act then,
i) reduction underneath Part 5 of the mentioned Act may very well be availed for searching for subsistence allowance or, on the choice of such a Muslim lady, treatment underneath Part 125 of the CrPC may be availed.
ii) If throughout the pendency of a petition filed underneath Part 125 of the CrPC, a Muslim lady is ‘divorced’ then she will be able to take recourse underneath Part 125 of the CrPC or file a petition underneath the 2019 Act.
iii) The provisions of the 2019 Act present treatment along with and never in derogation of Part 125 of the CrPC.
Case Title: Mohd Abdul Samad v. The State of Telangana & Anr., Particular Depart to Enchantment (Crl) 1614/2024
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