The Indian Constitution guarantees equal rights to all citizens irrespective of their gender, religion, or

caste. However, the reality is different for Muslim women in India. They have been subjected to numerous
discriminatory practices that have deprived them of their basic rights. In recent years, there have been
several landmark judgments by Indian courts that have recognized the rights of Muslim women. One such
judgment was the Shah Bano case, which led to the introduction of Section 125 of the Criminal Procedure
Code (CrPC).

Section 125 of the CrPC is a provision that provides maintenance to wives, children, and parents who are
unable to maintain themselves. It applies to all religions and is not specific to any particular religion. The
section was introduced after the Shah Bano case, where the Supreme Court held that a divorced Muslim
woman was entitled to maintenance from her former husband under Section 125 of the CrPC. This
decision was met with widespread protests from Muslim organizations, and the government of the day
responded by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Muslim Women (Protection of Rights on Divorce) Act, 1986, restricted the rights of Muslim women
and was criticized for being discriminatory. It provided that a divorced Muslim woman was entitled to
maintenance only for the period of iddat (three months after the divorce) and that the amount of
maintenance could not exceed the amount paid during the iddat period. This act was widely criticized for
being discriminatory towards Muslim women, and the Supreme Court struck it down in 2017 in the
Shayara Bano case.

Despite the existence of Section 125, Muslim women in India face several challenges in claiming their
rights. One of the biggest challenges is the lack of awareness about their rights. Many Muslim women are
not aware of the provision and do not know that they are entitled to maintenance from their husbands.

Another challenge is the social stigma attached to divorce in the Muslim community. Muslim women who
seek divorce or claim maintenance from their husbands are often ostracized by their families and
communities. This makes it difficult for them to pursue their legal rights.

The lack of support from the state and the legal system is another challenge faced by Muslim women. The
state has been slow in implementing measures to protect the rights of Muslim women, and the legal system
is often biased against them. Muslim women often face discrimination in the courts and are not given the
same rights as women belonging to other religions.

Section 125 of the Code of Criminal Procedure (CrPC) is a crucial provision in Indian law that aims to
provide maintenance to dependent family members who are unable to maintain themselves. This includes
wives, children, and parents. The provision is gender-neutral and applies to both men and women, but
Muslim women's rights under this section have been a subject of significant debate and controversy.

The main issue at hand is the question of whether Muslim women can claim maintenance under Section
125 CrPC, given that Muslim personal law recognizes a different system of maintenance. While the
Muslim personal law recognizes the concept of 'mahr' or dowry, which is payable by the husband to the
wife at the time of marriage, it does not provide for the concept of maintenance in the same way that it is
understood in secular law. This has led to confusion and conflicting judgments regarding the applicability
of Section 125 CrPC to Muslim women.

Following are the landmark judgements that have dealt with the issue of Muslim women's rights
under Section 125 CrPC:

 Shah Bano Case[i] (1985)

The Shah Bano case is one of the most important cases that dealt with Muslim women's rights
under Section 125 CrPC. In this case, Shah Bano, a Muslim woman, filed a petition under Section
125 CrPC claiming maintenance from her husband, who had divorced her after 43 years of
marriage. The case went all the way up to the Supreme Court, where the court held that Muslim
women are entitled to maintenance under Section 125 CrPC, irrespective of their personal law.
 The court observed that the provision of maintenance under Section 125 CrPC is a secular
provision that applies to all citizens, irrespective of their religion. The court further held that if the
Muslim personal law is found to be in conflict with the provisions of the constitution, then the
constitution would prevail. The court, therefore, directed Shah Bano's husband to pay maintenance
to her.

The Shah Bano case created a lot of controversy, particularly among conservative Muslims who
believed that the Supreme Court's decision was an interference in the Muslim personal law. The
case led to the passage of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which
sought to limit the scope of the Supreme Court's decision in the Shah Bano case.

 Danial Latifi Case[ii] (2001)

The Danial Latifi case is another important case that dealt with Muslim women's rights under
Section 125 CrPC. In this case, the husband had divorced his wife, and the wife had filed a
petition under Section 125 CrPC claiming maintenance. The husband argued that since he had
already paid the 'mehr' to his wife at the time of marriage, he was not liable to pay any further
maintenance.

The Supreme Court, in this case, held that the concept of 'mehr' is distinct from the concept of
maintenance, and the mere payment of 'mehr' does not absolve the husband of his obligation to
maintain his wife. The court observed that while the Muslim personal law recognizes the concept
of 'mehr', it does not provide for the same comprehensive maintenance as provided under Section
125 CrPC.

The court further held that Section 125 CrPC is a beneficial provision that is intended to provide
immediate relief to the dependent family members. The court, therefore, directed the husband to
pay maintenance to his wife under Section 125 CrPC.

Legal position of Muslim Women relating to maintenance

In Islam, “Maintenance” is termed as “Nafaqah”, which literally means „an amount spent by a man over
his family. According to many Muslim legal philosophers, maintenance includes all those things which are
essential to lead a life such as food, clothing and residence.
It is believed that a woman on her marriage gives up her all other avocations and entirely devotes herself to
the welfare of the family. In particular, she shares her emotions, sentiments, mind and body with her
husband, and this investment of her in the marriage is a sacramental sacrifice which is far too enormous
and can not be measured in terms of money.
Here, let‟s have a look at how and to what extent rights of maintenance of Muslim woman has been laid
down by the legislation and the judicial precedents in India.
This was a landmark case in the Indian legal history of a 62-year-old woman, who was divorced and
therefore, moved Supreme Court for claiming maintenance from her husband as her husband was
contesting her claim on the ground that he had already given the payment of mahrdue to her under Muslim
personal law so her claim for maintenance should be dismissed.
The Hon‟ble Supreme Court while deciding this controversial issue held that, mahr is an amount which is
payable in consideration of the marriage. Therefore, no amount which is payable in consideration of the
marriage can possibly be described as an amount payable in consideration of the divorce. „Mahr‟ is paid as
a mark of respect to the wife. Therefore, a sum payable to the wife out of respect cannot be a sum payable
by the husband to the wife for her maintenance on divorce. It further stated that generally the liability of
the husband to provide maintenance to his wife is limited to the period of iddat but if she is unable to
maintain herself, she is entitled to take recourse to Section 125 of the Code of Criminal Procedure, 1973.
The Hon‟ble Court concluded that the right conferred by Section 125 can be exercised irrespective of
personal law of the parties.
The Hon‟ble Supreme Court also held that Section 125 of the Code of Criminal Procedure, 1973 provides
maintenance rights to every woman irrespective of religion.
This case is seen as one of a milestone wherein Hon‟ble Supreme Court duly held that in case if any
conflict arises between Section 125 of the Code and the personal law, then in such a case former prevails
and thus the liability of the husband to pay maintenance to his wife extends beyond the period of iddat in
the circumstances where wife does not have sufficient means to maintain herself.
Muslim Women (Protection of Rights on Divorce) Act, 1986
The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted on 19th May, 1986 to
protect the rights of a Muslim women who have been divorced by or have obtained divorce from, their
husbands.
The provisions of this Act provided that the former husband must provide “a reasonable and fair
provision” as maintenance within the period of iddat. Thereafter, if in case she is unable to maintain herself
after the period of iddat, she can claim maintenance from her relatives and in case if they cannot pay, then
she can claim from the Wakf Board.
In the case “DanialLatifi Versus Union Of India,(2001)7 SCC 740,” the constitutional validity of the
MWPRDA, 1986 was challenged as being violative of the right to equality guaranteed under Article 14 of
the Indian Constitution. Further, it deprived Muslim women of maintenance benefits equivalent to those
provided to other women under Section 125 of Criminal Procedure Code, 1973 and it was argued that this
law would leave Muslim women destitute and thus was violative of the right to life guaranteed under
Article 21 of the Indian Constitution as the same excludes Muslim women from the purview of sec 125 of
the Code.
The Hon‟ble Supreme Court after interpreting the provision of the Act upheld its constitutionality and
came to the conclusion that a Muslim husband is liable to pay reasonable amount of maintenance for the
future of his divorced wife. It means amount entitled by a wife during the iddat period should be large
enough so that she can easily maintain herself during iddat period as well as in future in order to survive
and fulfill her basic needs. Thus, a divorced muslim woman is entitled to maintenance for a lifetime until
she is married again. The court concluded that the Act does not violate Articles 14, 15 and 21 and hence, is
not ultra vires and Section 3 of the Act is only a substitution of Section 125 Crpc and held:-
“1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife
which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond
the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat
period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain
her in proportion to the properties which they inherit on her death according to Muslim law from such
divorced woman including her children and parents. If any of the relatives being unable to pay
maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such
maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.”

Similar view was taken by the Hon‟ble Supreme Court in the case of “IqbalBanoversus State of UP,
Criminal Appeal No. 795 of 2001, wherein it was stated that the provisions of the Act do not contravene
Articles 14,15 and 21 of the Indian Constitution.
 The apex court’s forthcoming ruling holds the potential to
bridge legal schisms and affirm the rights of marginalized
segments, reinforcing the constitutional ethos of equality and
justice for all.