Section 127 CrPC | Divorced Muslim Woman Entitled to Enhancement of Maintenance Under Secular Law; 1986 Act Not a Bar: Orissa High Court

“Maintenance is a facet of gender parity and enabler of equality, not charity. It follows that a destitute Muslim woman has the right to seek maintenance under Section 125 CrPC despite the enactment of the 1986 Act.”— In a seminal ruling, the High Court of Orissa, comprising Justice Sanjay Kumar Mishra, has held that a divorced Muslim woman is not precluded from seeking enhancement of maintenance under Section 127 of the Code of Criminal Procedure (CrPC), reaffirming that the remedies under the Muslim Women (Protection of Rights on Divorce) Act, 1986 are in addition to, and not in derogation of, the secular provisions of the CrPC.

The Controversy: Secular Law vs. Personal Law Statute

The Court was adjudicating two revision petitions arising from a common order of the Family Court, Bhubaneswar. The dispute involved a Muslim couple divorced in 2003. The wife (Petitioner) sought enhancement of a maintenance amount fixed years prior, citing the skyrocketing cost of living and the husband's increased salary following the 7th Pay Commission. The Family Court had enhanced the maintenance from ₹3,000 to ₹8,100 per month.

The husband (Opposite Party) challenged the jurisdiction of the Family Court, arguing that since the original maintenance was granted under Section 3(2) of the 1986 Act, the wife was legally impermissible from invoking Section 127 CrPC for enhancement. He contended that the 1986 Act is a self-contained code with an overriding effect, and post-divorce maintenance beyond the iddat period should be the liability of relatives or the Wakf Board, not the former husband.

“The 1986 Act is not in derogation of Section 125 CrPC but in addition to the said provision.”

Judicial Reasoning: The Option Lies with the Woman

Justice Mishra dismantled the husband's objection regarding maintainability. Relying heavily on the Supreme Court’s landmark decision in Danial Latifi v. Union of India and the recent ruling in Mohd. Abdul Samad v. State of Telangana (2025), the High Court clarified that the 1986 Act does not extinguish a Muslim woman's right to invoke Section 125 CrPC.

The Court observed that the "non obstante clause" in the 1986 Act does not whittle down the application of Section 125 CrPC. It held that a divorced Muslim woman has the option to choose between the remedies or avail both, as the 1986 Act is remedial and supplemental in nature. The Court further noted that previous proceedings between the parties had effectively treated the maintenance applications under Section 125 CrPC, and "wrong nomenclature of a petition is not binding on the Court."

“Wrong nomenclature of a petition is not binding on the Court... it can safely be presumed that the Petitioner had conceded to be governed under the provisions of Section 125 Cr.P.C.”

Quantum of Maintenance: The 25% Rule

On the merits of the enhancement, the wife sought ₹35,000 per month, while the husband argued that ₹8,100 was excessive given his liabilities towards his second wife, daughter, and ailing mother. The husband, a Divisional Manager at Oriental Insurance Company, drew a basic salary of approximately ₹52,000 per month.

The Court applied the principle laid down in Kulbhushan Kumar and Kalyan Dey Chowdhury, which suggests that awarding approximately 25% of the husband’s net income is just and reasonable. While 25% of the basic salary amounted to ₹13,000, the Court balanced this against the husband's other financial obligations and the fact that the couple's son is now a major with an engineering degree.

“Taking into consideration the totality of circumstances... this Court deems it just and proper to enhance the maintenance to ₹10,000/- per month.”

Impact of Major Son’s Earnings

A significant point of contention was the status of the couple's son, Asad Khan. The husband argued that the son, being a B.Tech engineer, was gainfully employed and should maintain his mother. The Court acknowledged that the son had attained majority and was likely employed, but noted the absence of concrete documentary evidence regarding his exact income. Consequently, while the Court did not absolve the husband of liability entirely, it factored this into the final quantum, settling on ₹10,000 per month rather than the higher amount sought by the wife.

The High Court allowed the wife's petition in part, enhancing the maintenance to ₹10,000 per month, payable from the date of the application (05.07.2016). The husband was directed to pay differential arrears of ₹20,000 per month until the dues are cleared. The husband's petition challenging the maintenance was dismissed.

Date of Decision: 20.01.2026