The Patna High Court confirmed that a Muslim wife can get maintenance during and after marriage under Section 125 CrPC. Even after divorce, she can claim it if the husband hasn’t made proper financial arrangements.
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BIHAR: The Patna High Court said that a Muslim woman has the right to receive maintenance money from her husband under Section 125 of the Criminal Procedure Code (CrPC), 1973 if she cannot take care of herself during the marriage.
Even after divorce, she can still get maintenance if the husband has not made proper financial arrangements for her after the iddat period.
Justice Jitendra Kumar, while deciding the case, said:
“…despite the Act of 1986, a Muslim wife is entitled to get maintenance from her husband during the subsistence of her marriage under Section 125 Cr.PC, if she is unable to maintain herself. Even after divorce, she is entitled to get maintenance from her former husband under Section 125 Cr.PC if she is unable to maintain herself despite payment of maintenance for iddat period or payment of Dainmehar, if the former husband has not made provisions for her life during iddat period or the provisions made during the iddat period is not sufficient to maintain herself at the time of the application under Section 125 Cr.PC”.
Background of the Case
In this case, the woman (Petitioner No.1) had married her husband in 2007 according to Islamic customs. After marriage, she lived with him in his house. They had a daughter from this marriage.
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Later, the woman said her husband demanded extra dowry of Rs. 2,00,000/-. When she and her family failed to meet this demand, she was treated cruelly and thrown out of the house. She then filed a criminal case against him under Section 498A of the Indian Penal Code (IPC), 1860.
The woman also told the court that her husband runs a boutique in Mumbai and earns around Rs. 30,000/- every month. He also earns from agricultural land. So, she asked the court to order him to give her Rs. 2,000/- per month as maintenance.
On the other hand, the husband said that the wife never fully accepted him and lived with another man. He added that she did not even recognize him as her husband. Because of this, he filed for divorce, saying that she committed adultery. So, according to him, she should not get any maintenance.
The Trial Court accepted that the husband should give maintenance and ordered him to pay Rs. 1,500/- per month to the wife and Rs. 5,000/- as litigation cost. But it did not give any maintenance for the minor daughter, even though she was also a part of the case.
So, both the mother and daughter approached the High Court for better maintenance and to correct the Trial Court’s mistake.
What the Wife Argued
The wife said that her daughter was born during the marriage, so the child should also get maintenance from the father. She also argued that the amount of Rs. 1,500/- given by the lower court was too less, as the husband earns well.
Also, she said the maintenance should be given from the date of filing the case, not from the date of the order.
The husband repeated that the wife committed adultery and because of that, she is not eligible for any money. However, he never challenged the Trial Court’s order in any appeal.
He said that he already gave her the Dain-Mehar and paid maintenance for the iddat period, so he has no responsibility to give her more money.
What the High Court Said
The Patna High Court looked into the full matter. It said that the husband had not mentioned adultery in his original petition, and such things cannot be considered if not included from the start. Bringing such allegations only during evidence is not legally valid.
Also, the Court said that the husband did not prove that he earns less than Rs. 30,000/-. He didn’t provide any documents or cross-examine properly. So, the Court accepted the wife’s claim that he earns at least Rs. 30,000/- every month.
The Court also said the wife and her daughter clearly cannot maintain themselves on their own. The Court pointed out that even though the daughter is clearly entitled to get maintenance, no order was passed for her by the Family Court.
The judge said:
“There is no dispute that as per Section 125 Cr.PC, the minor daughter of the opposite party is entitled to get maintenance from her father. But I find that no order has been passed by learned Family Court to pay any maintenance to the petitioner No. 2/minor daughter.”
The Court again repeated the earlier quote for clarity:
“…it would be suffice to say that despite the Act of 1986, a Muslim wife is entitled to get maintenance from her husband during the subsistence of her marriage under Section 125 Cr.PC, if she is unable to maintain herself. Even after divorce, she is entitled to get maintenance from her former husband under Section 125 Cr.PC if she is unable to maintain herself despite payment of maintenance for iddat period or payment of Dainmehar, if the former husband has not made provisions for her life during iddat period or the provisions made during the iddat period is not sufficient to maintain herself at the time of the application under Section 125 Cr.PC.”
The Court also said that since the wife and daughter were not getting any money and had been suffering from the time the case was filed, the maintenance should be given from the date of filing, not from the date of the order. Section 125(2) of CrPC allows this.
Final Decision
In the end, the Patna High Court allowed the petition and ordered the husband to pay a total of Rs. 4,000/- per month to the wife and daughter as maintenance.
This order aims to ensure that the wife and child are financially supported.
Case Title:
Hasina Khatoon & Anr v. Aszad Ansari
(Criminal Revision No.164 of 2019)
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