Author : AKASH KRISHNAN
Citation: 1988 R.C.C. 51
Bench: N.M. Kasliwal, Farooq Hassan, JJ.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted to as an answer to the long line of questions raising demands for protection of rights of divorced women in the community. Section 3 of the Act provides that the Divorcing husband should provide reasonable maintenance to the woman during her Iddat period. What is significant to note is that Section 125 of Cr.P.C also provides for maintenance of women.
However, the line of difference between both these Sections is that Section 125 Cr.P.C can be claimed by a woman if she is unable to maintain herself, even after the Iddat period i.e. she can avail the rights of both the provisions for maintenance.
The Respondent was married to the Petitioner in the Year 1973 according to Islamic traditions. In the year 1981, the Petitioner moved to Maharashtra and during his stay there, he failed to provide maintenance to his wife. The Respondent was maintained by her brother during this time. In the year 1984, the Petitioner sent in a divorce deed to the Respondent and later married another woman.
The Respondent then approached the court by filing a petition under Section 125 of Cr.P.C seeking Maintenance. The court, deciding the case in her favour, awarded maintenance at the rate of Rs. 200 per month from the date of filing of application. In response, the Petitioner filed a revision petition, which was again decided in the favour of the Respondent. Thus, he has approached this court by filing a criminal miscellaneous application.
The Petitioner was of the opinion that the maintenance provided was void as Muslim women could seek maintenance only under the impugned act and not under Section 125 of the Criminal Procedure Code and that it would be a grave mistake in law if women are allowed to seek maintenance from both laws at the same time.
Whether a Muslim Divorced Women is not entitled to any Maintenance under Section 125 Cr.P.C after the enactment of The Muslim Women (Protection of Rights on Divorce) Act, 1986?
The objective of The Muslim Women (Protection of Rights on Divorce) Act, 1986 is that divorced women are provided maintenance till the period of Iddat. The act nowhere mentions the fact that it is retrospective in nature. While, Section 125 Cr.P.C talks about providing maintenance to women till the date they are remarried, if they are unable to maintain themselves.
Keeping the intent of the legislature in mind, if one allows a petition under the code for maintenance filed by a divorced woman, the same will be against the very virtue of the impugned Act. Thus, any petition which is in existence at the time of the enactment of Act for seeking maintenance under Section 125, the same shall be quashed. A new application shall be file by the divorced Muslim Wife against the husbands for maintenance during Iddat period. If the period of Iddat has crossed, and the wife is unable to maintain herself, she can file an application for Maintenance under this Act against those persons mentioned in Section 4 of the Act.