Allahabad High Court: In a criminal revision against the judgment and order of Principal Judge, Family Court, wherein the Court held that divorced Muslim woman is not entitled for maintenance under Section 125 CrPC, Raj Beer Singh, J. reiterated that a divorced Muslim woman is entitled to claim maintenance under Section 125 CrPC even for the period after iddat and for whole life unless she is disqualified for the reasons such as marriage with someone else. Thus, it set aside the impugned order,
In the case at hand, the marriage of revisionist/wife with opposite party/husband took place in the year 2006 but she was harassed by him for dowry and later she was divorced by him on 20-08-2009. The revisionist has not re-married so far. The revisionist along with her minor children had filed a case under Section 125 CrPC for maintenance against her husband, but her claim was rejected by the Court below vide impugned order.
The issue was whether a divorced Muslim woman is entitled for maintenance under section 125 CrPC?
The Court took note of Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, wherein the Court held that in case of conflict between the terms of the CrPC and the rights and obligations of the individuals under personal law, the Code would prevail. Further, it said that after this decision, the Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 (‘the Act’) to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or identical thereto.
The Court after examining the Act, said that Section 3 of the Act overrides all other laws and provides that a divorced woman shall be entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband;
(b) where she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.
Further, after relying on Danial Latifi v. Union of India, (2001) 7 SCC 740, Shabana Bano v. Imran Khan, (2010) 1 SCC 666, Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705, reiterated that a divorced Muslim woman is entitled to claim maintenance under Section 125 CrPC even for the period after iddat and for whole life unless she is disqualified for the reasons such as marriage with someone else.
Thus, the Court held that the rejection of the application of revisionist under section 125 CrPC on the ground that, being a divorced Muslim woman, she is not entitled to seek maintenance under section 125 CrPC, is against the well settled position of law and thus, the impugned order is liable to be set aside.
[Shakila Khatun v State of U.P, 2023 SCC OnLine All 75, decided on 21-02-2023]
Order by: Justice Raj Beer Singh
Advocates who appeared in this case :
Counsel for Revisionist: Advocate Chandra Bhushan Tiwari;
Counsel for Opposite Party: Government Advocate Vinayak Varma.