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Mahesh

20/02/24 08:23 AM IST

SC examines divorced Muslim women’s right to maintenance under Section 125 of the CrPC

In News
  • The Supreme Court has decided to examine if a divorced Muslim woman is entitled to a claim of maintenance under Section 125 of the Criminal Procedure Code (CrPC).
Section 125 of CrPC
  • The law governing maintenance for destitute wives, children, and parents has been codified under Section 125 of the CrPC.
  • It stipulates that if any person “having sufficient means neglects or refuses to maintain” his wife, then a magistrate of the first class may, upon proof of such neglect or refusal, order such a person to make a monthly allowance for the maintenance of his wife at a monthly rate as the magistrate thinks fit.
  • The explanation to this provision clarifies that a “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
  • It does not specify anything about the woman’s religion. Many States have made region-specific amendments to the section to allow a ceiling on the maintenance amount the court can order.
1986 Act
  • The 1986 Act, on the other hand, is a religion-specific law that provides for a procedure for a Muslim woman to claim maintenance during divorce.
  • It was enacted to essentially nullify the Supreme Court’s 1985 decision in the case of Mohd. Ahmad Khan v. Shah Bano Begum which upheld a Muslim woman’s right to seek maintenance from her divorced husband under Section 125 of the CrPC.
  • The verdict was, however, perceived by many to be an affront to religious personal laws.
  • Section 3 of the 1986 Act guarantees the payment of maintenance to a divorced Muslim woman by her former husband only during the period of iddat — a period, usually of three months, which a woman must observe after the death of her husband or a divorce before she can remarry.
  • Such an amount shall be equal to the amount of mahr or dowry given to her at the time of her marriage or any time after that.
  • After the completion of the iddat period, a woman can approach a first-class magistrate for maintenance in case she has not remarried and is not in a position to take care of herself financially.
Recent Supreme court Judgements
  • A Constitution Bench of the Supreme Court in the Danial Latifi v. Union Of India (2001) case upheld the constitutional validity of the 1986 Act by extending the right of a Muslim woman to get maintenance till she re-marries.
  • It, however, reduced the period of maintenance to the completion of iddat.
  • In 2009, a Division Bench of the Supreme Court reiterated a divorced Muslim woman’s right to claim maintenance under Section 125 of the CrPC as long as she does not remarry.
  • It further highlighted that such a relief would be extended even after the expiry of the iddat period.
  • Similarly, in 2019, Justice Ahsan Amanullah of the Patna High Court set aside a family court order rejecting a Muslim woman’s plea for maintenance by underscoring that she has the option to avail of maintenance both under the CrPC and the 1986 Act.
  • If she chose the CrPC, she could not be said to be debarred from seeking maintenance on account of being a divorced Muslim lady.
Popular Judgements
  • In a plethora of judgments recently such as Arshiya Rizvi v. State of U.P. and Anr (2022), Razia v. State of U.P. (2022), and Shakila Khatun v. State of U.P (2023), the Allahabad High Court has reaffirmed a divorced Muslim woman’s right to claim maintenance under Section 125 of the CrPC even after the completion of the iddat period as long as she does not marry.
  • In Mujeeb Rahiman v. Thasleena (2022), a single judge of the Kerala High Court observed that a divorced Muslim woman can seek maintenance under Section 125 of the CrPC until she obtains relief under Section 3 of the 1986 Act. Such an order will remain in force until the amount payable under Section 3 is paid.
  • Justice A. Badharudeen of the Kerala High Court in Noushad Flourish v. Akhila Noushad (2023), ruled that a Muslim wife who effected her divorce by the pronouncement of khula (divorce at the instance of, and with the consent of the wife) cannot claim maintenance from her husband under Section 125 of the CrPC.
  • When the wife effects divorce by khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C,” the judge reasoned.
Source- The Hindu

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