Maintenance of muslim woman under section 125 crpc

Question

I would like to know about the right to maintenance of Muslim woman after the divorce. My husband is in illegitimate relation with another woman. Due to all this, I left my matrimonial home and living with my parents. He divorced me two years ago. Could I  file a case for maintenance?

Question asked on 14/10/2015

Answered by: Advocate Shivendra

You are entitled to maintenance under Section 125 of the  Code of Criminal Procedure (CrPC). A destitute wife, children and parents can claim financial support under this section. As far as the wife is concerned, she can claim alimony if her husband refuses or neglects to maintain her. Maintenance is the fooding, lodging and other essential requirements for the livelihood.  

This section is equally applicable upon the Muslim woman if she has been living under destitution. The husband falls under paramount obligation to maintain his wife even after the divorce. The duty to support his wife never shifts from him (husband) even after giving Talaq.

The law of limitation does not apply on maintenance application filed under section 125 CrPC. Hence, you can claim alimony from your ex-husband even after two years of divorce. There is the only limitation, i.e. the wife should not be remarried after divorce. It would be best for you to file a maintenance application under section 125 CrPC. Let us see the ambit and scope of this section.

Section 125 Cr.P.C. and 1986 Act

After the judgment of the Shah Bano case, the parliament enacted Muslim Woman  (Protection of rights on Divorce) Act 1986 for providing maintenance to the Muslim divorced woman. The scope of the 1986 Act is limited, whereas section 125 has a vast realm. The former Act provides alimony up to the Iddat period while section 125 provides maintenance until her remarriage.  

Maintenance under the Muhammadan Law

Under Muslim law, the wife’s right to maintenance from her husband is an absolute right. It is a legal obligation of every husband to maintain his wife even she has own means to support herself. The wife has priority over all other persons in respect of the right to maintenance.

More importantly, she has such right till she remains faithful and obedient to her husband. After the divorce, she loses that right and entitles to subsistence allowance during the Iddat period only. The Muhammadan law has no provision regarding the right to alimony after the Iddat period.

Right to maintenance under Section 125 CrPC

Section 125 has no such limitation as present in the personal law. A divorced wife has the right to claim alimony from her ex-husband after the Iddat period. Until her remarriage, she has the right to get financial support.

In Md. Yameen Vs Shameem Bano 1984 Cr LJ 1297 All; the Allahabad High Court held that section 125 Cr.P.C. is not opposed to the personal law of Muhammadan. A divorced wife has the right to claim maintenance under this section. In Shamima  Bano vs Ashraf Khan (2014) 12 SCC; the supreme court holds that a divorced Muslim woman is also entitled to maintenance.

Thus you have the right to claim alimony from your ex-husband. Therefore, you should move an application before the Magistrate of the first class for alimony. The court shall grant maintenance in the form of monthly allowance. You can also seek interim maintenance and expenses of litigation until the final disposal of the case.

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Shivendra Pratap Singh

Advocate, Lucknow

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Consultation: 3309

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