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 from: Uttar Pradesh
You are entitled to claim maintenance under section 125 of the code of criminal procedure (crpc). Section 125 does not make religious discrimination in the passing of the order of monthly allowance to the wife. A Muslim woman also seeks alimony under this section so that you should file an application as soon as possible.
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 force him to perform his responsibility.
A needy wife, children and parents can receive financial support under this section. So far as the wife is concerned, section 125 includes a married as well as a divorced wife. A divorced lady can claim alimony if her former husband refuses or neglects to maintain her.
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.
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.
In Shamima Bano vs Ashraf Khan (2014) 12 SCC; the supreme court holds that a divorced Muslim woman is too entitled to maintenance under section 125 crpc.
The court has vast power under section 125 to decide any amount as maintenance, which is justified in the facts and circumstances of the case.
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.