Effect of non obstante clause occurring in the 1986 Act: A divorced Muslim woman can maintain a petition under S. 125 CrPC, despite enactment of the 1986 Act. Non obstante clause occurring in Ss. 3 and 4 of the 1986 Act cannot be deemed to override the rights so provided by S. 125 CrPC. Equivalent rights of maintenance under the secular provision of S. 125 CrPC, and the Personal law provision of S. 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 despite enactment of the 1986 Act, Mohd.
[Abdul Samad v. State of Telangana, (2025) 2 SCC 49]
Case comment
Supreme Court bench comprising Justices BV Nagarathna and J. Augustine George Masih dismissed an appeal by a Muslim man against a Telangana High Court order allowing his Ex-wife to seek maintenance under section 125 of CrPC and held that a Muslim woman is entitled to seek maintenance from her husband under Section 125 of the CrPC as a secular legislation, even if they were divorced under religious personal law. In viewpoint Justice Nagarathna, opinionated that Section 125 CrPC is “embedded in the text, structure and philosophy of the Constitution” as a social justice measure. “The remedy of maintenance is a critical source of success for the destitute, the deserted and the deprived sections of women… It is an instantiation of the constitutional philosophy of social justice that seeks to liberate the Indian wife including a divorced woman from the shackles of gender-based discrimination, disadvantage and deprivation,”
In shah Bano case also Justice D.Y Chandrachud ruled that Section 125 of the Code of Criminal Procedure applied to all citizens, irrespective of their religion, without discrimination. And in the same case the court also notified that Section 125(3) of the Code of Criminal Procedure was applicable to Muslims as well and in case of any conflict between Section 125 and Muslim Personal Law, Section 125 prevails. But still the answer was ambiguous as it was nullified by the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the validity of the law was upheld in 2001.
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