Few questions in family law have travelled a longer road than the maintenance rights of divorced Muslim women. The journey runs from the Supreme Court's decision in Mohd. Ahmed Khan v. Shah Bano Begum (1985), through the Muslim Women (Protection of Rights on Divorce) Act, 1986 and its constitutional reading in Danial Latifi v. Union of India (2001), to the decisive modern statement in Mohd Abdul Samad v. State of Telangana (2024). The destination is clear: the secular remedy — Section 125 of the CrPC, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — is available to a divorced Muslim woman, in addition to her rights under the 1986 Act. This explainer traces the law and its practical use in Delhi courts.
The arc of the law
What Mohd Abdul Samad decided
The appellant husband contended that after the 1986 Act, a divorced Muslim woman's only remedy was under Section 3 of that Act. The Supreme Court (judgment dated 10 July 2024, concurring opinions by Nagarathna and Masih, JJ.) rejected the contention. The Court held that the secular provision of Section 125 CrPC was never impliedly repealed for Muslim women; both statutes operate in their own fields, and the aggrieved woman may invoke either or both, with adjustments to prevent double recovery. The Court emphasised maintenance as a facet of the right to a dignified life, not charity.
The two remedies compared
| Feature | Section 144 BNSS (old s.125 CrPC) | Section 3, 1986 Act |
|---|---|---|
| Nature | Secular, summary, preventive of vagrancy | Personal-law based codification |
| Forum in Delhi | Family Court | Magistrate |
| Content | Monthly maintenance, interim and final; enforceable by warrant | Mahr, return of properties, fair provision and maintenance settled within iddat |
| Duration | Until remarriage or as varied under Section 146 BNSS | Provision made once but must cover the future (Danial Latifi) |
Practical use in Delhi
In practice, the Section 144 BNSS petition remains the workhorse: it carries the interim maintenance jurisdiction, the affidavit-of-assets discipline for determining real income, and the enforcement machinery of warrants and, in default, detention. A claim under the 1986 Act is valuable where a substantial mahr is unpaid, where the wife's articles and istridhan need to be recovered, or where a lump-sum fair provision suits the client better than monthly payments. Nothing prevents pursuing both, disclosed candidly, with adjustment of overlapping amounts.
- Plead the marriage, the divorce (talaq, khula or decree) and its date precisely — entitlements under the two statutes are computed from different anchors.
- Quantify mahr and istridhan separately from monthly maintenance; they are distinct heads.
- Disclose any amount already received under either statute; concealment damages credibility on quantum.
- Children's maintenance stands apart: it is available under Section 144 BNSS regardless of the parents' personal law.
Practice note: After the BNSS replaced the CrPC on 1 July 2024, pending Section 125 petitions continue under the saving provisions, and fresh petitions are filed under Section 144 BNSS. The substantive tests are unchanged, and the case law under Section 125 — including Mohd Abdul Samad — applies with full force.
Frequently Asked Questions
Can a divorced Muslim woman file under Section 144 BNSS today?
Yes. In Mohd Abdul Samad v. State of Telangana (10 July 2024) the Supreme Court held that Section 125 CrPC — and therefore its successor, Section 144 BNSS — applies to all married women including divorced Muslim women, and that the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not bar the secular remedy. The two remedies are additional, not exclusive.
What does the 1986 Act itself give her?
Section 3 of the 1986 Act entitles a divorced woman to a reasonable and fair provision and maintenance made and paid within the iddat period, mahr (dower), and the return of her properties. In Danial Latifi (2001) the Supreme Court read this to mean a fair provision for her future extending beyond iddat, though it must be made and paid within the iddat period.
If she has already obtained an order under the 1986 Act, can she still invoke Section 144 BNSS?
The remedies are parallel, but courts prevent double recovery. In Mohd Abdul Samad the Court indicated that where the 1986 Act remedy has been availed, that provision is taken into account in the secular proceedings; amounts received under one order are adjusted against the other.
Which court in Delhi hears these claims?
Applications under Section 144 BNSS are heard by the Family Courts in Delhi. Claims under Section 3 of the 1986 Act lie before the Magistrate. Interim maintenance can be sought in both, and the affidavit-of-assets regime applies to quantum determination in the Family Courts.