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Allahabad High Court : A divorced Muslim woman can claim maintenance from her husband even after expiry of iddat period

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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.

A Single Bench of Justice Karunesh Singh Pawar passed this order while hearing a Criminal Revision Defective filed by RaziaThe revision has been filed against the order dated 11.4.2008 passed by Additional Sessions Judge, Pratapgarh, whereby the order of trial Court dated 23.1.2007 has been modified.

The maintenance allowance of Rs1000/-awarded in favour of the revisionist no1( Razia) has been canceled or set aside and maintenance allowance in favour of revisionist nos 2 and 3 (children) has been reduced to Rs 250/- per month from Rs 500/- per month each.

Counsel for the revisionist submitted that the trial Court order dated 23.1.2007 has allowed the application under Section 125 Cr.P.C filed by the revisionist after adjudicating five issues. All those issues have been decided 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, wherein the impugned order dated 11.4.2008 has been passed.

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Submission of the counsel for the revisionist is that the revisional Court has wrongly relied and misinterpreted the judgment of Danial Latifi and another vs Union of India reported in AIR 2001 SC 3958 by allowing the revision.

He submitted that revision has been allowed only on the ground that since the revisionist no1 has been divorced by respondent no 2 both are governed by the Muslim Women (Protection of Rights on Divorce) Act 1986 and therefore in view of judgment of the Supreme Court in the case of Danial Latifi (supra), after enforcement of the Act, 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 support of his arguments, he has relied on the judgment of the Supreme Court in the case of Shabana Bano vs Imran Khan passed in Criminal Appeal.

Counsel for the revisionist submitted that till date not a single penny has been given by respondent no 2 to the revisionist.

“On due consideration and perusal of the record as well as the judgment passed by the trial court, it is not in dispute that respondent no 2 is a person of having sufficient means to maintain his divorced wife and minor children.

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Issue no.1 has been decided by the trial Court in favour of the revisionist. Likewise he has neglected to maintain his wife and minor children. The revisionist is destitute and have no source of income and revisionist is entitled to get the maintenance allowance from respondent no 2 and consequently issue nos 2 to 5 have been decided in favour of the claimant revisionist”, the Court noted.

“It appears that revisional court has modified the order passed by the trial court and maintenance allowance granted under Section 125 Cr.P.C in favour of respondent no1 has been set aside and the allowance granted in favour of revisionists no 2 and 3 have been reduced to Rs 250/- from Rs 500/- per month.

From perusal of the impugned order, it appears that the finding of fact regarding the monthly income of the respondent no.2 given by the trial Court has been substituted by the revisional Court by its own finding and a different finding, which, in my opinion, is not permissible, while exercising jurisdiction in the criminal revision. On this ground, the maintenance allowance awarded to the revisionists no 2 and 3 has been reduced to half, which is also not proper”, the Court observed.

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 the Supreme Court. The revisionist no1 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.

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

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While passing the judgment, the Court has noticed that the maintenance has been awarded to the revisionist under Section 125 Cr.P.C from the date of the order, which according to recent judgment of the Supreme Court in Rajnesh vs Neha and another reported in (2021) 2 SCC 324, should be paid from the date of application filed under Section 125 Cr.P.C and therefore, judgment being retrospective in nature is applicable in present case.

“Hence, the order passed by the trial court dated 23.1.2007 is also 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. Any amount already paid during the pendency of the proceedings under Section 125 Cr.P.C by respondent no 2 shall be adjusted”

-the Court said while allowing the petition.

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