Sir, I have applied to section 125 CrPC for maintenance. During the pendency of that application, my husband unanimously gave divorce. He is planning to marry another woman. After that, I filed another petition under section 3 of the Muslim Woman (Protection of Right on Divorce) Act 1986, for delivery of my ornaments and other belongings.
However, he delivered all the items and paid maintenance during the Iddat period, but he is neglecting to maintain beyond the Iddat period. In the meantime, he filed a reply in the proceeding under section 125 that Muslim woman is not entitled to the maintenance after the Iddat period and he does not want to proceed under section 125 whether I’m still entitled to the maintenance after Iddat period.
You are entitled to maintenance, under section 125 of the code of criminal procedure, even beyond the Iddat period. Your husband cannot absolve of his liability merely stating that Muslim woman is not entitled to the maintenance after the Iddat period. The judgment of Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 still applicable because in Danial Latifi v. Union of India, (2001) 7 SCC 740 the constitutional bench of Supreme Court has upheld the validity of a judgment rendered in Shah Bano case.
A Muslim woman is entitled to maintenance under section 125 of the code of criminal procedure even after divorce. If she gets married, then her right to maintenance will come to an end. Muslim personal law provides maintenance until the expiration of the Iddat period, but section 125 CrPC does not control by the personal law. Hence, maintenance can be extended beyond the Iddat period.
The 1986 act requires that court can proceed under section 125 only when both parties agree and submitted their affidavit or declaration (under section 5 of 1986 Act) that they prefer to govern by the provision of section 125 – 128 of the CrPC.
In your case, a maintenance petition under section 125 is admitted by the court without any objection of your husband. As well as your application under section 3 of the 1986 Act was also allowed. It infers that your husband has granted his permission to governed by the provision of section 125 CrPC. No other formality is required under section 125.
Now the court became empowered to decide your application under section 125 CrPC and grant maintenance. In Danial Latifi v. Union of India, (2001) 7 SCC 740 the Supreme Court opined that husband is under obligation to make a “reasonable and fair provision” for his divorced wife and provide “maintenance” for her if she remains unmarried.
In Khatoon Nisa v. State of U.P., (2014) 12 SCC 646 the Supreme held that “when parties agree, the provisions of Section 125 CrPC could be invoked as contained in Section 5 of the 1986 Act and even otherwise, the Magistrate under the Act has the power to grant maintenance in favour of a divorced woman”.
In Shabana Bano v. Imran Khan (2010) 1 SCC 666 the Supreme Court reiterated 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.”
Hence, you are still entitled to get maintenance after the Iddat period. Your husband has already granted permission to govern under the provision of section 125 CrPC. No other formality is required for maintenance under section 125.