Muslim Law Advocate | Lawyer in Delhi
Muslim Law Under BNSS, CPC, and CrPC in India
With the introduction of Bharatiya Nyaya Sanhita (BNSS) 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, and Bharatiya Sakshya Adhiniyam (BSA) 2023, the legal landscape of Muslim personal law in India has changed. Below is how Muslim personal law interacts with these new laws along with provisions under the Civil Procedure Code (CPC) and Criminal Procedure Code (CrPC).
1. BNSS (Bharatiya Nyaya Sanhita, 2023) & Muslim Law
BNSS replaces IPC (Indian Penal Code, 1860) and deals with criminal offenses, including those affecting Muslim personal law.
(A) Dowry and Cruelty in Muslim Marriages
- Section 85 BNSS (Formerly IPC 498A) – Cruelty Against Wife
- If a Muslim wife is subjected to cruelty (physical/mental harassment or dowry demands), she can seek justice under BNSS 85.
- This applies even if the marriage follows Islamic customs.
- Section 86 BNSS (Abandonment of Wife Without Support)
- If a Muslim husband abandons his wife without financial support, she can take action under BNSS 86.
- Section 103 BNSS (Formerly IPC 304B) – Dowry Death
- If a Muslim wife dies due to dowry harassment within 7 years of marriage, the husband and in-laws can be prosecuted.
2. BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023) & Muslim Law
BNSS (which replaces CrPC 1973) governs criminal procedures, including maintenance claims and domestic abuse cases for Muslim women.
(A) Maintenance for Muslim Women (Section 125 BNSS, formerly CrPC 125)
Muslim women can claim maintenance under:
- Muslim Women (Protection of Rights on Divorce) Act, 1986 (special law).
- Section 125 BNSS (formerly CrPC 125) – A Muslim woman can claim maintenance from her husband even after divorce if she is unable to support herself (Shah Bano Case ruling applies).
(B) Filing a Criminal Case for Triple Talaq (BNSS 377)
- Instant Triple Talaq (Talaq-e-Biddat) is a punishable offense under BNSS 377 (formerly Triple Talaq Act, 2019).
- A Muslim husband who gives instant Talaq can face:
- 3 years imprisonment + Fine
- Legal protection for wife and children
3. Civil Procedure Code (CPC) & Muslim Personal Law
The CPC (1908) governs civil matters such as marriage, divorce, inheritance, and Wakf properties in Muslim law.
(A) Divorce & Maintenance Cases
- Muslim women can approach Family Courts under CPC for:
- Khula (wife-initiated divorce)
- Dower (Mehr) recovery cases
- Post-divorce maintenance disputes
(B) Inheritance & Succession Cases
- Muslim inheritance disputes can be settled in civil courts under CPC Order XXXII (suits related to succession).
- Special provisions for Sharia-based succession apply.
(C) Wakf Property Disputes
- Wakf Tribunals handle Wakf (Islamic charitable trusts) disputes.
- CPC applies for appeals related to Wakf Board decisions.
4. Criminal Procedure Code (CrPC) & Muslim Law
The CrPC (now BNSS 2023) provides legal procedures for criminal cases related to Muslim laws.
(A) Arrest & Protection in Dowry Cases (BNSS 85, 103, 377)
- Muslim women facing dowry harassment can file criminal cases under BNSS (formerly CrPC FIR provisions apply).
- Police protection & immediate legal action are available for victims.
(B) Execution of Maintenance Orders (Section 125 BNSS / Formerly CrPC 125)
- If a Muslim husband fails to pay maintenance, the court can issue a warrant for recovery.
- If maintenance remains unpaid for more than one month, he can be imprisoned.
Procedure to File a Case Under Muslim Law in India
Muslim personal law cases in India, such as divorce, maintenance, inheritance, and dowry-related issues, follow specific legal procedures under the CPC (Civil Procedure Code), BNSS (Bharatiya Nyaya Sanhita), and BNSS (Bharatiya Nagarik Suraksha Sanhita). Below is the step-by-step process to file a case under different provisions of Muslim law.
1. Filing for Divorce (Talaq, Khula, or Mubarat)
(A) Procedure for Muslim Husband Seeking Divorce (Talaq)
🔹 Step 1: Issue a clear and revocable Talaq-e-Ahsan (one pronouncement) or Talaq-e-Hasan (three pronouncements over three months).
🔹 Step 2: Observe a mandatory Iddat period (3 months) before finalizing the divorce.
🔹 Step 3: If reconciliation fails, execute a divorce deed (Talaqnama) before witnesses.
🔹 Step 4: Register the divorce with the local Qazi, Notary, or Family Court.
🚫 Instant Triple Talaq (Talaq-e-Biddat) is illegal under BNSS 377 and is punishable with 3 years imprisonment.
(B) Procedure for Muslim Wife Seeking Divorce (Khula or Court Divorce)
✅ Option 1: Khula (Mutual Consent Divorce)
- Step 1: Wife offers Mehr refund or a mutually agreed settlement.
- Step 2: If the husband accepts, they sign a Khula Deed.
- Step 3: File for registration of Khula in a Family Court.
✅ Option 2: Court Divorce (Under Dissolution of Muslim Marriages Act, 1939)
- Step 1: File a petition in Family Court citing grounds like cruelty, desertion, or failure to maintain.
- Step 2: Court issues notice to the husband.
- Step 3: Court may attempt reconciliation or mediation.
- Step 4: If reconciliation fails, the court grants Faskh (judicial annulment of marriage).
2. Filing for Maintenance (Under BNSS 125 & Muslim Women Act, 1986)
Who Can File?
✅ A Muslim wife (married or divorced)
✅ Minor children of a Muslim man
✅ Muslim parents (if dependent)
Step-by-Step Procedure
🔹 Step 1: File an application under BNSS 125 (formerly CrPC 125) or Muslim Women Act, 1986 in a Family Court or Magistrate Court.
🔹 Step 2: Attach proof of marriage, divorce (if applicable), and financial dependency.
🔹 Step 3: Court issues notice to the husband.
🔹 Step 4: Court conducts hearings and assesses the husband’s income.
🔹 Step 5: If the husband fails to pay, the court can order salary attachment, property seizure, or jail (up to 1 month per default).
🛑 If maintenance is denied, the wife can appeal in the Sessions Court.
3. Filing a Case for Dowry Harassment or Domestic Violence (BNSS 85, 86, 103)
Step-by-Step Procedure
🔹 Step 1: File a complaint with the police under BNSS 85 (Cruelty) or BNSS 103 (Dowry Death).
🔹 Step 2: The police register an FIR and investigate.
🔹 Step 3: If there is evidence, the accused is arrested and charged in court.
🔹 Step 4: The case proceeds to trial in a Sessions Court.
🔹 Step 5: If convicted, punishment includes jail (up to life imprisonment for dowry death).
📌 For domestic violence, a woman can file a separate case under the Domestic Violence Act, 2005 for protection orders, residence rights, and compensation.
4. Filing for Child Custody (Under Guardianship Act & BNSS 125)
✅ Under Muslim law, a mother gets custody of minor children (Hizanat) till:
- Boy reaches 7 years
- Girl reaches puberty
✅ The father remains the legal guardian (Wilayat).
Procedure to File for Custody
🔹 Step 1: File a petition in the Family Court under the Guardians and Wards Act, 1890.
🔹 Step 2: The court issues notice to the father.
🔹 Step 3: The court considers the child’s welfare before granting custody.
🔹 Step 4: If the mother is denied custody, she can appeal in the High Court.
5. Filing an Inheritance or Property Case (Under CPC & Muslim Personal Law)
Step-by-Step Procedure
🔹 Step 1: File a partition suit in Civil Court under CPC Order XXXII.
🔹 Step 2: Provide proof of relationship & property details.
🔹 Step 3: The court sends a notice to legal heirs.
🔹 Step 4: If there is no dispute, the court grants share as per Sharia law.
🔹 Step 5: If there is a dispute, the court conducts hearings & issues a final order.
📌 Muslims cannot make a will (Wasiyat) for more than 1/3rd of their property unless all heirs agree.
6. Procedure to File a Case for Wakf Property Disputes
🔹 Step 1: File a complaint with the State Wakf Board.
🔹 Step 2: If not resolved, file a suit in the Wakf Tribunal under the Wakf Act, 1995.
🔹 Step 3: The Tribunal issues a decision on ownership & management.
🔹 Step 4: If unsatisfied, appeal to the High Court.
7. Filing a Case Against Instant Triple Talaq (BNSS 377)
🔹 Step 1: Muslim wife files a complaint at the police station.
🔹 Step 2: The police register an FIR under BNSS 377 (formerly Triple Talaq Act, 2019).
🔹 Step 3: The husband is arrested and produced before the Magistrate.
🔹 Step 4: If convicted, he faces 3 years imprisonment + Fine.
🔹 Step 5: The wife gets maintenance & custody of children.
8. Where to File Cases Under Muslim Law in India?
| Type of Case | Where to File? | Applicable Law |
|---|---|---|
| Divorce (Khula, Talaq) | Family Court | Muslim Personal Law, CPC |
| Maintenance (BNSS 125) | Magistrate Court | BNSS 125, Muslim Women Act, 1986 |
| Dowry Harassment | Police / Sessions Court | BNSS 85, 103 |
| Domestic Violence | Family Court / Magistrate | Domestic Violence Act, 2005 |
| Child Custody | Family Court | Guardians & Wards Act, 1890 |
| Inheritance Disputes | Civil Court | CPC, Muslim Law |
| Wakf Property Dispute | Wakf Tribunal | Wakf Act, 1995 |
| Triple Talaq Complaint | Police / Sessions Court | BNSS 377 |
Conclusion
Muslim law in India follows Sharia principles, but courts provide legal remedies under BNSS, CPC, and CrPC. Women have strong protections for maintenance, divorce, custody, and dowry harassment cases.
📌 Need help with a specific Muslim law case? Let me know! 🚀
5. FAQs on BNSS, CPC, CrPC & Muslim Law
1. Can a Muslim woman file for maintenance under BNSS (Section 125)?
✅ Yes, even though the Muslim Women Act, 1986 exists, she can claim maintenance under Section 125 BNSS (formerly CrPC 125).
2. What happens if a Muslim husband gives instant Triple Talaq?
🚫 Illegal under BNSS 377 (Formerly Triple Talaq Act, 2019).
- Punishment: 3 years jail + fine.
- Wife gets maintenance & custody rights.
3. Can a Muslim husband be arrested for dowry harassment?
✅ Yes, under BNSS 85 (formerly IPC 498A), he can be arrested for cruelty.
4. Can a Muslim woman seek divorce in a Family Court?
✅ Yes, she can file under:
- Dissolution of Muslim Marriages Act, 1939
- CPC for civil divorce proceedings
5. Can a Muslim woman claim property under CPC?
✅ Yes, inheritance disputes go to Civil Courts under CPC provisions.
6. Is Nikah Halala punishable under BNSS?
🚫 Nikah Halala is highly controversial but not yet criminalized under BNSS. However, courts have called for its abolition.
7. Can a Muslim man have 4 wives legally?
✅ Yes, under Muslim personal law, but courts have discouraged it.
8. Can a Muslim woman inherit equally to a man?
🚫 No, under Sharia law, a daughter gets half of a son’s share.
9. Is a verbal Muslim marriage valid in India?
✅ Only if there are witnesses & Mehr is fixed.
10. Can a Muslim be arrested for abandoning his wife?
✅ Yes, under BNSS 86, abandoning a wife without support is punishable.
6. Conclusion
- BNSS (formerly IPC) governs criminal aspects of Muslim law (dowry, cruelty, instant Talaq).
- BNSS (formerly CrPC) governs maintenance and domestic violence cases.
- CPC applies to divorce, property, and inheritance matters.
- Muslim women have legal rights under Indian law, including BNSS protections.
Would you like specific case laws or procedures for filing petitions under BNSS/CPC/CrPC? 🚀