HC gives Muslim woman maintenance under CrPC

The Gujarat High Court on Tuesday ruled that a divorced Muslim woman was entitled to maintenance under Section 125 of the Code of Criminal Procedure...

The Gujarat High Court on Tuesday ruled that a divorced Muslim woman was entitled to maintenance under Section 125 of the Code of Criminal Procedure, and not under the Muslim Woman (Protection of Rights on Divorce) Act, 1986, because her maintenance application was filed when she was still married and that the said law applied only to divorced women.

On January 31, 1986, when she first filed the maintenance application, Yasmeen Khan was 19 years old, married and subjected to abuse by her husband. After two decades of legal struggle, the decision by the Single Bench on Tuesday means Yasmeen, now divorced, would get close to Rs 40,000, calculated at Rs 150 per month.

The Muslim Women (Protection of Rights on Divorce) Act, was enacted in May 1986 in the wake of the Shah Bano judgment upholding the right of Muslim women to seek maintenance under the CrPC. The Act had diluted the Supreme Court judgment and among other things stipulated that the maintenance to a divorced woman be given only during the period of iddat or till 90 days after the divorce according to the provisions of Islamic law. On the other hand, Section 125 of the CrPC, is the general provision for maintenance of wives, children and parents and applies to everyone irrespective of religion.

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The High Court said Yasmeen was entitled to maintenance since January 1986 when she filed the application and it would not be affected by her divorce nine months later in October 1986 because the litigation arising out of the maintenance application was still pending when the talaq had taken place.

For Yasmeen, the judgment is a vindication for her demand for maintenance that has been a question of litigation since January 31, 1986, when the application under Section 125 of the Cr PC was filed before the Sabarkantha chief judicial magistrate. The CJM had subsequently ordered that a maintenance of Rs 150 per month be paid to Khan.

However, on her husband Niwaz Khan’s appeal, this was reversed by the Additional Sessions Judge on the grounds that no claim for maintenance would be tenable under Section 125 of the CrPC because the Muslim Women (Protection of Rights on Divorce) Act was already in place. Yasmeen had then approached the High Court through a criminal revision petition on March 14, 1988.

On Tuesday, Justice D N Patel reversed this order and restored the ordered of the CJM and ordered that maintenance be paid to the woman effective from 1986 to the present day.