Maintenance of a Divorced Woman under Section 125, Cr.P.C. :
Under Section 125 of the Criminal Procedure Code, 1973, the term, ‘wife’ includes a divorced wife or a wife who has obtained a divorce from her husband and has not remarried. Underneath the Muslim regulation, the husband is at risk of hold his divorced wife until the length of iddat best and his legal responsibility to preserve the divorced spouse terminates after this period. But, under the Criminal Procedure Code, 1973, a divorced wife is entitled to be maintained by her former husband beyond the period of iddat provided she remains unmarried. But a divorced wife’s proper to preservation is issue to section 127(three) of the Act which lays down that the order for the protection in favour of a divorced wife will be cancelled, and such woman shall now not be entitled to protection :—
(1) where she has remarried;
(2) where she has received the whole sum due to her under any customary or personal law; and
(3) wherein she has voluntarily surrendered her rights to renovation after her divorce.
In Zohra Khatoon v. Mohd Ibrahim,2 the Supreme Court has held that the word ‘wife’ in Section 125(1) Explanation (b) of Cr. P.C, 1973 includes a woman who has obtained a decree for dissolution of her marriage under any of the provisions of the Dissolution of Muslim Marriages Act, 1939.
In Bishnu Charan Mohanty v. Union of India,³ a very interesting question was answered by the Orissa High Court. A Hindu husband who was a citizen of India made grievance that though he had no choice in so far as application of Section 125, Cr. P.C. dealing with grant of maintenance, inter alia, to divorced woman was concerned, his counterpart if he be a Muslim had option because of what had been provided in Section 5 of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 and so he was being discriminated against solely on the ground of religion which violate the mandate of Article 15(1) of the Constitution. The prayer, therefore, was that Section 5 of the Act should be struck down.
The Orissa High Court held that Section 5 of the Act 1986 providing an option to Muslim husband alone to be governed by Section 125, Cr. P.C. is not hit by Article 15 of the Constitution because the classification is not made only on the basis of religion but there exists historical, personal or other reasons also supporting classification.
In Shihabudheen v. Shybi and another, the Court held that whether the dissolution is under Talaq or Khula or Mubarat or under the Dissolution of Muslim Marriages Act, 1939, if the divorce is in accordance with the Muslim law, she is a divorced wife and so entitled to get all the benefits which are available to her, unless a reasonable and fair provision and maintenance has been made and paid or mahr or dower was paid.
Maintenance of Shah Bano Begum v. Mohammad Ahmed Khan, the five Judges bench of the a Divorced Muslim Woman after Shah Bano case. In Supreme Court held that a Muslim husband having sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. One of these wife is entitled to the maintenance even supposing she refuses to stay with the Muslim husband due to the fact he has gotten smaller some other marriage within the restrict of four wives allowed to him by Quran. The Supreme Court rejected this contention of the husband that Section 125 of the Criminal Procedure Code providing for the the maintenance of divorced woman who is unable to maintain herself is inapplicable to Muslims.
It become stated that the faith professed by a partner or the spouses has no place within the scheme of phase a 125 Cr. P.C.., which is a degree of social justice based on an man or woman‘s obligation to the society to prevent vagrancy and destitution. whether or not the spouses are Hindus, Muslims, Christians or Parsis, pagans or heathens, is totally beside the point to the software of section 125 Cr. P.C.. It was held that a Muslim divorced woman who cannot maintain herself is entitled to maintenance from her former husband till the time she gets remarried. They rejected the plea that maintenance is payable only till the period prescribed under Muslim personal law, during which she should abstain from sexual intercourse and other luxuries. The discovered judges held that the ability of the husband to keep his divorced wife until the expiration of the Iddat length extends most effective in case the wife is able to keep herself. Pointing to the “Aiyats” of the Quran, the Judges declared that these genuinely impose an responsibility to offer upkeep to the divorced wife.
The contention was that deferred mahr (dower) is a payment on the divorce of a wife and hence such payment under the personal law excludes the payment of any maintenance by husband to wife, also rejected. It was told that under Section 127 (3) (b) Cr. P.C., mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage.²
Suit for maintenance.-
If the husband neglects or refuses to hold his spouse with none lawful motive, the spouse may also sue him for protection both underneath the Muslim regulation or underneath phase one hundred twenty five and segment 126 of the Code of criminal system, 1973.3
Now the law relating maintenance of Muslim divorced girl is governed through the Muslim women (protection of Rights on Divorce) Act, 1986. phase one hundred twenty five Cr. percent. has no utility up to now as Muslims are involved.
A Muslim wife is not entitled to a decree for past maintenance, unless the claim is based on specific agreement. But under Shafei Laws, she can claim even past maintenance. In Cherummel Abdulla v. Pooralora Katheesa, the parties were Shafei Mussalmans, Balakrishna Menon, J., applied the liberal Shafei rule of law and dismissed the second appeal of the husband seeking to resist his wife’s claim for past maintenance.
In Habeebulla v. Shakeela,2 a Muslim wife claimed maintenance against her husband who had taken another wife. She had also acquired a divorce from a Civil court docket. The husband contended that he was a Muslim and so could legitimately take another wife. He advocated the supremacy of his personal law over the provisions of the Code. He was successful in trial court. But in attraction that order was set aside.
The Kerala High Court held that personal law has necessarily to yield to the will of the Parliament and, therefore, the wife had every right to withdraw from him on the ground of his second marriage and get maintenance from him.3
The wife may claim maintenance, if the husband marries a second wife in spite of her refusal to live with the husband.4
When husband minor and wife adult.-
Even if the husband is minor (incapable to consummate) and the wife is adult she is entitled to maintenance. If the minor husband has no source of income, the father (or the guardian) of the minor is liable for her maintenance, though he has right to recover from his son.
Maintenance under agreement.-
A wife is entitled to recover an antenuptial maintenance from her husband on the basis of an agreement made between the parties, or their guardians provided that such an agreement is not opposed to any law or to public policy or the policy of Muslim Law. For instance, a wife may validly stipulate that in case the husband ill treats, takes a second wife or keeps a concubine, she can be entitled to stay one by one and declare certain amount (as laid down inside the agreement).
Maintenance of a pregnant woman.—
Under the Sunni law, the liability of the husband to maintain a pregnant wife whom he has divorced ceases at her confinement. Below the Shia law, there may be a difference of opinion. One opinion is that a pregnant woman has the right of maintenance. On the other hand, there are people who are of the opinion that a pregnant wife has no right of maintenance.
Widow’s right of maintenance.—
Hedaya says that a widow shall not have any right of maintenance after the death of her husband. Fatwa-iAlamgiri says that under the Hanafi Law, the widow has no right to maintenance whether, she be pregnant or not. Beneath the Shia regulation a widow isn’t always entitled to any maintenance, even though she was pregnant at the time of the demise of her husband. There are Shia authorities who have recognized widow’s right on the death of her husband she was pregnant to maintenance