Sanjeev Sirohi
Published on: 28 February 2023 at 12:43 IST
While ruling on a very significant legal point pertaining to maintenance of divorced Muslim woman, the Allahabad High Court in a most learned, laudable, landmark and latest judgment titled Smt Shakila Khatun vs State of UP and Another in Criminal Revision No. – 3573 of 2021 that was reserved on January 25, 2023 and then finally pronounced it on February 21, 2023 has minced just no words to observe that a divorced Muslim woman is entitled to claim maintenance under Section 125 CrPC even for the period after iddat and for her whole life unless she is disqualified for the reasons such as marriage with someone else.
It must be mentioned here that while observing so, the Single Judge Bench of Hon’ble Mr Justice Raj Beer Singh thus set aside an order of the Family Court whereby the plea that was filed by one Shakila Khatun who is a divorcee under Section 125 CrPC was dismissed by holding that a divorced Muslim woman is not entitled to maintenance under Section 125 CrPC. Very rightly so!
At the very outset, this brief, brilliant and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Raj Beer Singh of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The present criminal revision has been preferred against the judgement and order dated 20.09.2021, passed by the learned Principal Judge, Family Court, Ghazipur, in Case No. 665 of 2020 (Smt. Shakila Khatun and others vs. Ali Husen), under Section 125 Cr.P.C., whereby the case of revisionist under Section 125 Cr.P.C. was dismissed.”
To puts things in perspective, the Bench then envisages in para 3 that, “It has been argued by learned counsel for the revisionist that impugned judgment and order is against the facts and law and thus liable to be set aside. Referring to facts of the matter, it was submitted that marriage/Nikah of revisionist with opposite party No.2 has taken place in the year 2006 but she was harassed by the opposite party No.2 on account of dowry and later on she was divorced by the opposite party No.2 on 20.08.2009,”.
“The revisionist has not re-married so far. The revisionist along with her minor children has filed a case under Section 125 Cr.P.C. for maintenance against the opposite party No.2 but the claim of revisionist was rejected by the Court below vide impugned order by holding that divorced Muslim woman is not entitled for maintenance under Section 125 Cr.P.C. Referring to impugned judgment and order, it is submitted that the claim of revisionist under Section 125 Cr.P.C. has been rejected merely on the said ground that she, being divorced wife, is not entitled for maintenance under Section 125 Cr.P.C., which is against settled position of law,”.
“Learned counsel has referred the case of Danial Latifi vs. Union of India 2001 Law Suit(SC) 1293 and case of this Court in Jubair Ahmad vs. Ishrat Bano 2019(3)DMC 789 and submitted that in view of law laid down by Hon’ble Apex Court, which has been followed by this Court, it is clear that a divorced Muslim wife is entitled for maintenance under Section 125 Cr.P.C. even after the iddat period, till she re-marries,”.
“It is also submitted that there is absolutely no such evidence that divorce between the parties took place by mutual consent or that she was residing separately by mutual consent. Referring to facts of the matter, it was submitted that the impugned order is against well settled position of law and thus liable to be set aside.”
While citing the most relevant case law, the Bench then points out in para 11 that, “In Shabana Bano v. Imran Khan (2010) 1 SCC 666, the question that arose for consideration before the Supreme Court was whether a Muslim divorced wife would be entitled for maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum? Referring to several earlier judgments, the Court held that proceedings under Section 125 Cr.P.C. are civil in nature and laid down that a petition under Section 125 of the Cr.P.C. filed by a divorced woman would be maintainable before the Family Court as long as appellant does not remarry and the amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only. It was held:
“Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi, (2001 AIR SCW 3932) (supra) and Iqbal Bano, (2007 AIR SCW 3880) (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.
In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.””
While citing yet another relevant case law, the Bench observes in para 12 that, “In Shamim Bano v. Asraf Khan (2014) 12 SCC 636, again the issue was whether the appellant’s application for grant of maintenance under Section 125 of the Code is to be restricted to the date of divorce and because of filing of an application under Section 3 of the Act after the divorce for grant of mahr and return of gifts would disentitle the wife to sustain the application under Section 125 of the Code. Referring to Shabana Bano (supra) it has been held that the appellant’s petition under Section 125, CrPC would be maintainable before the Family Court as long as the appellant does not remarry,”.
“The amount of maintenance to be awarded under Section 125, CrPC cannot be restricted for the iddat period only, the Supreme Court held: “The aforesaid principle clearly lays down that even an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code.”
Further, the Bench mentions in para 13 that, “In Shamima Farooqui v. Shahid Khan AIR 2015 SC 2025, the application of wife for grant of maintenance was resisted by the husband alleging that he had already given divorce to her and has also paid the Mehar to her,”.
“The Supreme Court held that there can be no shadow of doubt that the divorced Muslim woman is entitled to claim maintenance under Section 125 CrPC.”
Do note, the Bench then hastens to add in para 14 noting that, “In case of Jubair Ahmad vs. Ishrat Bano (supra), relied by learned counsel for the revisionist, this court held as under:
‘‘Thus from the above discussion, it is clear that after the passing of the Act, from the judgment in Danial Latifi (supra) to Shamima Farooqui (supra), it is clear that the Supreme Court has interpreted the provisions of the Act and section 125 of the Code in such a way so as to give recognition to the right of divorced Muslim wife to claim maintenance under section 125 even for the period beyond iddat period and for the whole life unless she is disqualified for the reasons such as entering into marriage with someone else. Therefore, I find no force in the argument that the divorced Muslim wife is not entitled to maintenance beyond iddat period.’’
Most significantly, most commendably and so also most forthrightly, the Bench then mandates in para 15 holding that, “Thus, in view of aforesaid position of law it is clear 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 some one else. Thus, in the instant case, 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.”
As a corollary, the Bench then directs in para 16 that, “In view of aforesaid, the impugned order passed by the Family Court is set aside and matter is remitted back to the Court concerned to decide the claim of revisionist under section 125 CrPC and pass an order afresh in accordance with law.”
Finally, the Bench then concludes by holding in para 17 that, “Revision is allowed in above terms.”
In a nutshell, we thus see that the Allahabad High Court has made it indubitably clear that a divorced Muslim women is entitled to maintenance under Section 125 of CrPC even after ‘iddat’ period until she remarries. It thus definitely merits no reiteration of any kind that all the lower courts must definitely pay heed to what the Allahabad High Court has laid down so clearly, cogently and convincingly in this leading case! No denying it!
Sanjeev Sirohi, Advocate