The Supreme Court docket has held {that a} Muslim girl, 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 Legal Process.
This proper is along with the treatment offered beneath the Muslim Ladies (Safety of Rights on Marriage) Act 2019, which specifies {that a} girl, who has been subjected to triple talaq, can be entitled to assert subsistence allowance from her husband.
It might be famous the 2019 Act criminalised the apply of triple talaq which was declared as void by the Supreme Court docket in 2017.
The bench comprising Justices BV Nagarathna and Augustine George Masih was deciding the query whether or not a Muslim girl may 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 girls who’ve been illegally divorced.
“When divorce is void and unlawful, such a Muslim girl can even search treatment beneath 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 beneath Part 5 of the stated Act may very well be availed for looking for subsistence allowance or, on the choice of such a Muslim girl, treatment beneath Part 125 of the CrPC may be availed.
ii) If through the pendency of a petition filed beneath Part 125 of the CrPC, a Muslim girl is ‘divorced’ then she will be able to take recourse beneath Part 125 of the CrPC or file a petition beneath 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 Court docket additionally held that Muslim girls, who bought married beneath 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 beneath the 1986 Act but when she has been the sufferer of the mischief outlined beneath the 2019 Act, then her proper to subsistence allowance is secured by means of Part 5 of the 2019 Act. The intent of the Parliament is obvious: it seeks to offer ample treatments to girls from financial deprivation which will consequence from marital discord, no matter their standing as a married or divorced girl. Subsequently, previous to a divorce in accordance with legislation, a married girl has entry to upkeep beneath the final legislation, i.e., Part 125 of the CrPC and beneath a particular legislation, i.e., 2019 Act. When divorce is void and unlawful, such a Muslim girl can even search treatment beneath 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 girls together with Muslim married girls.
b) Part 125 of the CrPC applies to all non-Muslim divorced girls.
c) Insofar as divorced Muslim girls are involved, –
i) Part 125 of the CrPC applies to all such Muslim girls, married and divorced beneath the Particular Marriage Act along with treatments obtainable beneath the Particular Marriage Act.
ii) If Muslim girls are married and divorced beneath Muslim legislation then Part 125 of the CrPC in addition to the provisions of the 1986 Act are relevant. Choice lies with the Muslim divorced girls to hunt treatment beneath both of the 2 legal guidelines or each legal guidelines. It is because the 1986 Act is just not in derogation of Part 125 of the CrPC however along with the stated provision.
iii) If Part 125 of the CrPC can be resorted to by a divorced Muslim girl, as per the definition beneath the 1986 Act, then any order handed beneath the provisions of 1986 Act shall be considered beneath 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 beneath Part 5 of the stated Act may very well be availed for looking for subsistence allowance or, on the choice of such a Muslim girl, treatment beneath Part 125 of the CrPC may be availed.
ii) If through the pendency of a petition filed beneath Part 125 of the CrPC, a Muslim girl is ‘divorced’ then she will be able to take recourse beneath Part 125 of the CrPC or file a petition beneath 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 Go away to Attraction (Crl) 1614/2024
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