Divorced Muslim woman can seek maintenance under 1986 Act and CrPC: Orissa HC

The ruling came in two cross-revision petitions filed by Kakhashan Khan and her ex-husband Gayasuddin Khan, challenging a family court order that had enhanced her maintenance from ₹3,000 to ₹8,100 per month.

A divorced Muslim woman has the right to seek maintenance under either the Muslim Women (Protection of Rights on Divorce) Act, 1986, or Section 125 of the Criminal Procedure Code, or both, as the two remedies are complementary and not mutually exclusive, the Orissa high court has ruled.

For representational purposes only. (AFP)

While adjudicating two cases of revision petition over maintenance, the court examined whether a divorced Muslim woman who initially sought maintenance under the 1986 Act could subsequently invoke Section 127 CrPC(which empowers a magistrate to enhance monthly maintenance). While the woman’s ex-husband argued that since the original order was passed under the 1986 Act, recourse to Section 127 CrPC was “legally impermissible” unless both parties filed a declaration under Section 5 of the 1986 Act opting for CrPC provisions, the HC ruled that for divorced Muslim women married under Muslim law, both Section 125 CrPC and the 1986 Act are applicable.

“Section 125 CrPC applies to all married women including Muslim married women and to all non-Muslim divorced women. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion,” justice Sanjay Kumar Mishra observed, quoting Supreme Court precedent that Section 125 is “truly secular in character.” The court emphasized that the beneficial provisions of maintenance law cannot be denied on technical grounds: “The emphasis is on sufficient maintenance, not minimal amount.”

Following the divorce, Kakhashan filed an application in 2004 under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 claiming monthly maintenance of ₹5,000 for herself and ₹2,000 for her son. The magistrate awarded ₹1,500 per month to each of them. This was later enhanced to ₹3,000 each in 2011.

In 2016, citing escalating living costs and the ex-husband’s promotion to deputy manager at Oriental Insurance Company, Kakhashan sought further enhancement to ₹35,000 per month. The family court enhanced it to ₹8,100 which was challenged by her in Orissa HC in 2017.

“From the consistent course of proceedings and orders passed by the court from time to time, it is quite evident that the initial maintenance was effectively granted under Section 125 CrPC. Therefore, no separate declaration under Section 5 of the 1986 Act was required,” justice Mishra observed, while raising the monthly maintenance of the divorced Muslim woman from ₹3,000 to ₹10,000, holding that the 1986 Act is “in addition to and not in derogation of” the secular maintenance provisions under CrPC.

The court extensively relied on the Supreme Court’s ruling in ‘Mohd. Abdul Samad versus State of Telangana (2025)’, which held that rights under the 1986 Act are additional to, not in derogation of, rights under Section 125 CrPC.

“A divorced Muslim woman is entitled to seek recourse to either or both the provisions. The option lies with such a woman,” the court had said, adding that “maintenance is a facet of gender parity and enabler of equality, not charity.”

While enhancing the maintenance to ₹10,000 per month (rather than the ₹8,100 awarded by the Family Court), Justice Mishra applied the Supreme Court principle that approximately 25 percent of the husband’s net income would be “just and reasonable” as maintenance.

However, the court took into account several factors: the ex-husband’s remarriage and responsibility toward his second wife and daughter (now 19 years old), his aged and ailing mother, loan repayments, and the fact that the woman stayed in a rent-free hpuse with her son in a house built by the ex-husband in Bhubaneswar. The court also noted that their son Asad Khan, now around 30 years old, is a B.Tech civil engineer who was working in a company and is “capable of maintaining her.

The court directed the ex-husband to pay the enhanced maintenance of ₹10,000 per month with effect from July 5, 2016 (the date of filing the enhancement application). Additionally, he must pay ₹20,000 every month toward differential arrears from January 2026 until the entire arrears are adjusted.