I would like to know about the right to maintenance of a Muslim woman under section 125 crpc. My husband loves a woman and planning to marry her. Due to all this, I left my matrimonial home and living with my parents. I took a divorce two years ago and want alimony from him under section 125 crpc. Could I file a case for maintenance?
Question from: Uttar Pradesh
A divorced Muslim woman is entitled to maintenance from her ex-husband if she is unmarried and living in destitution. She can claim maintenance under Section 125 crpc even after the expiration of the Iddat period. Section 125 crpc does not discriminate on the basis of religion Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556. So, you can claim alimony at any time after the Iddat period.
What you need to prove
You have to prove some essential facts at the time of filing of the application under section 125 crpc. These facts are mandatory for the admission of the application. If these facts are missing then the court will not admit your application. The applicant has to establish that:
- she is living in destitution.
- she remains unmarried after the divorce.
- ex-husband has sufficient means to maintain her.
- the applicant has no source of income or not able to maintain herself.
- ex-husband has been refusing or neglecting to maintain her.
If the wife remarried after the divorce then she cannot claim maintenance from her ex-husband. The only unmarried divorced wife can seek alimony from her divorced husband. The Mohammedan personal law provides that husband is entitled to pay maintenance until the expiration of the Iddat period. But section 125 crpc says that divorced wife has the right to claim alimony after the Iddat period.
In Iqbal Bano v. the State of U.P. (2007) 6 SCC 785; the Supreme Court held that a divorced Muslim woman is entitled to maintenance under section 125 crpc until she does not remarry. In Shabana Bano v. Imran Khan, (2010) 1 SCC 666 the court clarified that the purpose, object and scope of section 125 are to prevent vagrancy by compelling those who are under an obligation to support her. If the husband refuses or neglects to maintain his wife, then she can compel him to perform his responsibility.
Right to maintenance under Section 125 CrPC
Section 125 is social legislation and enacted to protect the wife from the indirect cruelty of the husband. Divorce itself causes hardship to the wife and poverty makes her life more miserable. Therefore, it becomes incumbent to protect the wife from vagrancy.
If the husband has enough resources to extend financial support to his divorced wife, section 125 compels him to do so and prevent the wife from starvation.
Husband escapes from such an obligation due to the lack of express provision in the personal law. Section 125 fills that gap and bounds the husband to take care of his wife even after the divorce.
The supreme court holds that a divorced Muslim woman is also entitled to maintenance under section 125 crpc.Shamima Bano vs Ashraf Khan (2014) 12 SCC;
The court of Judicial Magistrate First Class has vast power under section 125 to decide a monthly allowance as maintenance. The amount of monthly allowance should be justified in the facts and circumstances of the case. If the amount of maintenance is excessive the husband can file a revision for reducing the monthly allowance.
Maintenance includes the expenses of food, lodging and other essential requirements for the livelihood. The court examines the financial capacity of the husband and the actual necessity of the wife. After that, fixes a monthly allowance.
RIght to maintenance is a continuing right. Consequently, the law of limitation does not apply on proceeding under section 125 crpc. Hence, you are free to move such petition even after two years of divorce.
Maintenance under the Muhammadan Law
Under Muslim law, the married wife’s right to maintenance from her husband is absolute. It is a legal obligation of every husband to maintain his wedded wife even she has own means to support herself. The wife has priority over all other persons in respect of the right to maintenance.
But she holds such right until she remains faithful and obedient to her husband. After the divorce, she loses that right and barely entitles to get subsistence allowance during the Iddat period. The Muhammadan law has no provision regarding the right to alimony after the Iddat period.
According to Mohammadan law, a divorced wife has right to receive monetary support until the end of three months (Iddat) from the date of divorce. The holy Quran is silent about the extension of alimony right after the Iddat period.
However, the Sharia law has supremacy over the matter of financial support for a divorced wife but after the Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 case the Muslim women have got that right under section 125 crpc even after the Iddat period.