Divorced Muslim Woman Can Claim Maintenance From Husband U/S 125 CrPC As Long As She Doesn't Remarry: Allahabad High Court

Reiterating the law laid down in the case of Shabana Bano vs. Imran Khan, the Allahabad High Court has observed that a divorced Muslim woman shall be entitled to claim maintenance from her husband under Section 125 Cr.P.C. even after the expiry of the period of iddat as long as she does not remarry.

The Bench of Justice Karunesh Singh Pawar observed thus while allowing a revision plea filed against the judgment and order passed by the Additional Sessions Judge, Pratapgarh in May 2008, modifying the order of trial Court passed in Janury 2007.

The case in brief 

Essentially, the trial Court had allowed the application under Section 125 Cr.P.C. filed by the revisionist/muslim lady after deciding five issues in favour of the revisionist. Aggrieved by the order passed by the trial Court, respondent no.2/Husband filed the revision before the revisional court.

The revisional court/ASJ had canceled the maintenance allowance of Rs.1000/-awarded in favour of the revisionist no.1/muslim lady and maintenance allowance in favour of revisionist nos. 2 and 3 (children) had been reduced to Rs.250/- per month from Rs.500/- per month each.

The revisional Court, while relying upon the judgment of the Supreme Court in the case of Danial Latifi and another vs. Union of India reported in AIR 2001 SC 3958, had allowed the revision only on the ground that since the revisionist no.1 had been divorced by respondent no.2, therefore, both are governed by The Muslim Women (Protection of Rights on Divorce) Act 1986 and hence, they shall be governed by the this Act.

It was further reasoned by the Court that the divorced Muslim women is entitled to get maintenance under Section 3 and Section 4 of the aforesaid Act even after the stage of iddat and therefore she is not entitled to receive maintenance under Section 125 Cr.P.C.

In essence, the Court had opined that since the wife had accepted divorce, therefore, she would be guided by the provisions of Muslim Women (Protection of Rights on Divorce) Act, and petition under Section 125 of the CrPC filed by her shall not be maintainable.

Court's observations and order

At the outset, the Court noted that the provision under Section 125 Cr.P.C. are beneficial piece of legislation and the benefit thereof must accrue to the divorced Muslim women. Further, relying on Shabana Bano case (supra), the Court concluded that a divorced Muslim woman shall be entitled to claim maintenance from her husband under Section 125 Cr.P.C. even after expiry of period of iddat as long as she does not remarry.

"In view of the aforesaid judgement of Sabana Bano (Supra), I have no hesitation in holding that the view taken by the revisional Court is contrary to the law laid down by Hon'ble Supreme Court. The revisionist no.1 being a divorced Muslim women was entitled to claim maintenance under Section 125 Cr.P.C. There is no illegality in the order passed by the trial Court," the Court held as it allowed the revision plea 

Accordingly, the order passed by the revisional Court was set-aside in view of law laid down by Hon'ble Supreme Court in the case Sabana Bano (supra).

However, the order passed by the trial court was modified to the extent that the revisionist shall be paid maintenance by respondent no.2 from the date of filing of the application under Section 125 Cr.PC (in view of SC's ruling in the case of Rajnesh vs. Neha and another). 

Case title - Razia v. State of U.P. [CRIMINAL REVISION DEFECTIVE No. - 475 of 2008]

Case Citation: 2022 LiveLaw (All) 179

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