# Jubair Ahmad Revisionist v. Ishrat Bano

- **Citation:** (2020) 2 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** Criminal Revision No. 2509 of 2014
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jubair-ahmad-revisionist-v-ishrat-bano-45320
- **Pages:** 16

## Headnote

Law-Code
of
Criminal
Procedure,1973-Sections
397/401Section
125-challenge
to-award
of
maintenance to the divorced wife when
she did not marry-revisionist contended
that Second maintenance application u/s
125
is
not
maintainable-subsequent
application is barred by the principle of
res-judicata-the amount of maintenance
u/s 125 is not restricted for the iddat
period only u/s 3(1)(a) of the Muslim
women (Protection of Rights on Divorce)
Act-section 125 Cr.P.C. overrides the
personal law of the parties-she is entitled
to take recourse to section 125 Cr.P.C. if
she is unable to maintain herself till she
remarries-Family court is justified-hence,
dismissed.(Para 1 to 37)

B. Criminal Law-Section 125 Cr.P.C. is a
piece of social legislation which provides
for a summary and speedy relief by way
of maintenance to a destitute wife and
helpless children.(Para 38 to 46)

Criminal Revision dismissed.(E-6)

List of Cases Cited:

## Text

_Characters 0–39,984 of 53,377. This is a partial read: ask again with offset=39984 for what follows._

864 INDIAN LAW REPORTS ALLAHABAD SERIES
was made for making deposit of interim
maintenance
by
above
order
of
Magistrate's Court. This mediation appears
to have been failed and this further appeal
and
criminal
revision
against
same
maintenance order, has been filed. It
shows litigating attitude of husband, who
had filed all these proceeding, but not
ready to make payment to his wife. High
Court, in its general superintendence of
power under Article 227 of Constitution of
India, is also to look all such type of
affairs, which are to be cured for enabling
Constitution and its system to get the goal
of welfare state enshrined in Chapter IV of
the Constitution of India.

7. Under all above facts and
circumstances, learned trial Court as well
as learned Appellate Court was well within
jurisdiction. There is no illegality or
irregularity apparent on record or failure of
jurisdiction by any above court. Though,
this petition deserves to be dismissed with
special cost but the cost is not being
imposed. But a direction is being made for
making payment of maintenance as
ordered by lower Courts.

8.
The
Criminal
Revision
is
dismissed, accordingly.

9. With the aforesaid directions, this
application is finally disposed of.
----------
(2020)02ILR A864

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 2509 of 2014
Jubair Ahmad ...Revisionist
Versus
Ishrat Bano ...Opposite Party

Counsel for the Revisionist:
Sri Abhishek Kumar

Counsel for the Opposite Party:
A.G.A., Sri Manvendra Singh, Sri S.K.
Nigam

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Sections
397/401Section
125-challenge
to-award
of
maintenance to the divorced wife when
she did not marry-revisionist contended
that Second maintenance application u/s
125
is
not
maintainable-subsequent
application is barred by the principle of
res-judicata-the amount of maintenance
u/s 125 is not restricted for the iddat
period only u/s 3(1)(a) of the Muslim
women (Protection of Rights on Divorce)
Act-section 125 Cr.P.C. overrides the
personal law of the parties-she is entitled
to take recourse to section 125 Cr.P.C. if
she is unable to maintain herself till she
remarries-Family court is justified-hence,
dismissed.(Para 1 to 37)

B. Criminal Law-Section 125 Cr.P.C. is a
piece of social legislation which provides
for a summary and speedy relief by way
of maintenance to a destitute wife and
helpless children.(Para 38 to 46)

Criminal Revision dismissed.(E-6)

List of Cases Cited:

1.
Pradeep
Kumar Maskara Vs. St. Of
W.B.,(2015) 2 SCC 653

2. Kalinga Mining Corpn. Vs. UOI, (2013) 5 SCC
252

3. Mohd.Ahmed Khan Vs. Shah Bano Begum,
AIR (1985) SC 945

4. Bai Tahira Vs. Ali Hussain Fidaalli Chothia,
(1979) 2 SCC 316
2 All. Jubair Ahmad Vs. Ishrat Bano
865
5. Fuzlunbi Vs. K. Khader Vali (1980) 4 SCC 125

6. Danial Latifi Vs. UOI, AIR (2001) SC 3958

7. Shabana Bano Vs. Imran Khan (2010) 1 SCC
666

8. Iqbal Bano Vs. St. Of U.P.(2007) 6 SCC 785

9. Vijay Kumar Prasad Vs. St. Of Bih., (2004) 5
SCC 196

10. Shamim Bano Vs. Asraf Khan (2014) 12
SCC 636

11. Shamima Farooqui Vs. Shahid Khan, AIR
(2015) SC 2025

12. Khatoon Nisa Vs. St. Of U.P. (2002) 6
SCALE 165

13. Chander Prakash Bodhraj Vs. Shila Rani
Chandr Prakash, AIR (1968),Delhi 174

14. Jasbir Kaur Sehgal Vs. Distt Judge
Dehradoon(1997) 7 SCC 7

15. Capt. Ramesh Chander Kaushal Vs. Veena
Kaushal, AIR,(1978) SC 1807

16. Chaturbhuj Vs. Sita Bai (2008) 2 SCC 316

17. Nagendrappa Natikar Vs. Neelamma, AIR
(2013) SC 1541

18.
Badshah
Vs.
Sou.
Urmila
Badshah
Godse,AIR (2014) SC 869

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J).)

1. This criminal revision has been
preferred against the impugned judgment and
order dated 14.07.2014 passed by Principle
Judge, Family Court, Kaushambi in Case No.
150 of 2014 (Smt. Ishrat Bano Vs. Jubair
Ahmad) under section 125 Cr.P.C. by which
opposite party no. 2 Ishrat Bano (divorced
wife) has been awarded Rs. 3000/- per month
from the date of judgment as maintenance.

2. Before the learned court below, the
wife gave an application under section 125
Cr.P.C. stating that she was married with
revisionist according to Muslim Personnel
Law on 22.10.1998. After marriage she went
to her husband's house and performed her
matrimonial obligation. A daughter Km.
Saniya was born from their wedlock. In the
year 1999 her husband and his family
members demanded Motorcycle, Refrigerator
and Rs. 25000/- in dowry and on account of
non-fulfillment of dowry, she along with her
daughter was expelled from matrimonial house
after being beaten and since then, she and her
daughter are living with her parents. The
husband divorced her on 27.09.2001 and till
the presentation of this application she has not
remarried. Earlier one application was given
by her, bearing case no. 34 of 2002, under
section 125 Cr.P.C. which was decided and Rs
800/- per month applicant (wife) and Rs. 500/-
per month to her daughter was awarded from
date of application till the date of divorce. After
divorce she did not remarry. The Supreme
Court has now laid down a law that a divorced
Muslim lady is entitled for maintenance under
section 125 Cr.P.C. When she came to know
this law she immediately filed this petition. She
is a domestic women and totally dependent on
her father. In April 2010 her father died and
since then she is in a serious financial trouble
and is not able to maintain herself. The
husband is a teacher in a Government school
and is earning Rs. 25,000/- in a month and
therefore,
she
claim
Rs.
10,000/-
as
maintenance.

3. The opposite party filed a written
statement and admitted the marriage and
birth of daughter. He has also stated that
on 27.09.2001 after he divorced her wife,
by the order of the court he gave
maintenance of 13 months and expenses
till the period of iddat. The amount of
dower Rs. 11,786/- was paid by him on the
866 INDIAN LAW REPORTS ALLAHABAD SERIES
very
first
night
of
their
marriage.
Thereafter, nothing remained payable by
him to her nor she is entitled to any further
maintenance. She is an independent mind
women and she always insisted him to live
with her parents which he could not do
because of his responsibility towards his
family and brothers. The wife is arrogant
enough and told him to either live with her
parents or give her divorce. She is not
there to cook food for his family members
and she was married with him because of
his job. She regularly mentally harassed
him and forced by this situation, he
divorced her. He also filed a suit for
restitution of conjugal rights numbered as
305 /2005 (Jubair Ahmad Vs. Ishrat Bano)
in Allahabad and due to which she got
angry and lodged false Criminal Case in
Case Crime No. 134 of 2000, under
section 498A, 323 IPC and section 3⁄4
Dowry Prohibition Act. But the same was
found to be false during investigation and
final report was submitted. He thereafter,
solemnized second marriage in 2003 and
with the second wife, he has two children.
He is bearing the expenses of his daughter
from the opposite party. She is also
educated enough to earn and she gives
tuition and earn Rs. 5000/- to Rs. 7000/-
and she also works as beautician and earns
Rs. 3 to 4 thousand in a month and as such
she is earning Rs. 10 to 11 thousand in a
month. Just to further harass him this
application has been filed which is not
maintainable and is liable to be dismissed.

4. From the side of wife, the
judgment dated 09.07.2002 in Case No.
34/2002 (Ishrat Bano vs. Jubair Ahmad),
under section 125 Cr.P.C. passed by Civil
Judge (JD), Kaushambi has been filed. She
has also examined herself as PW-1. The
husband has filed question answer dated
02.08.2000 and resignation letter of Ishrat
Bano from her school. He has examined
himself as DW-1 and DW-2 Akbar Ali has
also been examined in support.

5. On the basis of the pleadings of
the parties the learned court below found
following points for consideration in this
case:

(1) Whether the application
under section 125 Cr.P.C. of the applicant
Ishrat Bano, a divorcee, is maintainable?

(2) Whether the applicant is
living separately with the respondent for
reasonable cause and the opposite party
has neglected the applicant in providing
maintenance?

(3) Whether the applicant is not
able to maintain herself?

(4) Whether the opposite party is
capable of maintaining the applicant?

6. After considering the evidence of
the parties, the learned court below passed
the impugned judgment.

7. Aggrieved by the impugned
judgment this revision has been filed
challenging the impugned judgment on the
ground that earlier a case under section
125 Cr.P.C. for maintenance was filed by
the wife bearing Case No. 34 of 2002
which was decided on 09.07.2002 and by
that order, the maintenance claim of the
wife was rejected on the ground that being
Muslim she is not entitled for maintenance
after divorce beyond period of Iddat and
by this impugned Judgment, the said
judgment has been reviewed, which is
contrary to law. Successive petition for
maintenance is not maintainable. When an
application has been filed and heard and
decided on merit, a second application for
the same relief is not permissible under
law. The judgment is totally perverse and
2 All. Jubair Ahmad Vs. Ishrat Bano
867
it is not correct that the revisionist did not
pay maintenance after the date of divorce,
as applicant was directed to make payment
of
maintenance
since
the
date
of
presentation of application till the date of
divorce at the rate of Rs. 800/- per month
and that order was fully complied with.
Moreover, his old mother, his two younger
unemployed brothers and two daughters of
second wife and second wife of the
revisionist are dependent upon him and
being only earning person of family he
cannot afford to pay the maintenance to
the divorced wife, more so, she is not
entitled under law for such maintenance.
After the disposal of the first maintenance
application on 09.07.2002, in year 2012
almost after the lapse of 10 years this
present application was filed by the wife.
In view of the provisions of the Muslim
Women (Protection of Rights on Divorce)
Act 1986, the revisionist is not liable to
maintain the wife after the divorce beyond
the period of Iddat, but the learned court
below did not consider this statutory
provision
and passed
the
impugned
judgment which is liable to be set aside.

8. The point for consideration no. 2
appears to have been unnecessarily framed
as admittedly the applicant is a divorced
wife and therefore, she is living separately
from the ex-husband after divorce with her
parents. The husband has himself admitted
that a demand for maintenance was made
in the earlier application and the same was
paid and beyond the period of Iddat, he
has not provided any maintenance to the
applicant. Therefore, on point number 2,
the facts being admitted, there is no need
for giving a finding.

9. So far as point no. 4 is concerned,
the husband is a teacher in a Government
School and it has been admitted by the
husband that his basic pay is Rs. 14,000/-,
therefore, his ablity to maintain and
provide
maintenance
is
very
much
established. There is no cogent evidence
with regards to any income of the
applicant. The fact that she is giving
tuition or she is running a beauty parlor is
not established by any cogent evidence.
Therefore, the finding on issue number 2,
3 and 4 did not require reconsideration.

10. The legal issue as argued by the
counsel to the revisionist is when an
earlier application for maintenance has
been decided between the parties after full
contest and the maintenance awarded in
that case has been fully paid by the
husband, a second application in view of a
subsequent Supreme Court judgment is not
maintainable and no maintenance can be
awarded on the basis of the second
application. The further argument is that
the divorced Muslim wife is not entitled to
maintenance under the law applicable to
parties and the subsequent application is
barred by the principle of res-judicata. In
support of this submission, the learned
counsel to the revisionist has taken
reference of the judgment in Pradeep
Kumar Maskara vs State of WB, (2015)
2 SCC 653 and Kalinga Mining Corpn
vs Union of India, (2013) 5 SCC 252.

Scope of the Right of Muslim
Divorced Wife to Claim Maintenance

11. In Mohd. Ahmed Khan v. Shah
Bano Begum , AIR 1985 SC 945, the
issue before the court was that where a
Muslim woman had been divorced by her
husband and paid her mahr, would it
indemnify the husband from his obligation
to pay maintenance under the provisions of
Section 125 Cr.P.C.. A Five-judge Bench
of the Supreme Court held that the Code of
Criminal
Procedure
controls
the
868 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings in such matters and overrides
the personal law of the parties and in case
of conflict between the terms of the Code
and the rights and obligations of the
individuals under personal law, the Code
would prevail.

12. In this case the husband appealed
against the judgment of the High Court
directing him to pay to his divorced wife
Rs. 179/- per month as maintainence under
section 125 of CrPC, enhancing the sum of
Rs. 25 per month originally granted by the
Magistrate. The parties had been married
for 43 years before the ill and elderly wife had
been thrown out of her husband's residence.
For about two years the husband paid
maintenance to his wife at the rate of Rs. 200/-
per month. When these payments ceased she
petitioned under Section 125 Cr.PC. The
husband immediately dissolved the marriage
by pronouncing triple talaq. He paid Rs.3000/-
as deferred mahr and a further sum to cover
arrears of maintenance and maintenance for
the iddat period and he sought thereafter to
have the petition dismissed on the ground that
she had received the amount due to her on
divorce under the Muslim law applicable to the
parties. The important feature of the case was
that the wife had managed the matrimonial
home for more than 40 years and had borne
and reared five children and was incapable of
taking up any career or independently
supporting herself at that late stage of her life -
remarriage was an impossibility in that case.
The husband, a successful Advocate, with an
approximate income of Rs. 5,000/- per month
provided Rs. 200/- per month to the divorced
wife, who had shared his life for half a century
and mothered his five children and was in
desperate need of money to survive.

13. The Supreme Court, reiterating the
view expressed earlier in Bai Tahira v. Ali
Hussain Fidaalli Chothia, (1979) 2 SCC 316
and Fuzlunbi v. K. Khader Vali (1980) 4
SCC 125, held:

"The true position is that, if the
divorced wife is able to maintain herself, the
husband's liability to provide maintenance for
her ceases with the expiration of the period of
iddat but if she is unable to maintain herself
after the period of iddat, she is entitled to take
recourse to Section 125 of the Code. The
outcome of this discussion is that there is no
conflict between the provisions of Section 125
and those of the Muslim Personal Law on the
question of the Muslim husband's obligation to
provide maintenance for a divorced wife, who
is unable to maintain herself."

14. After the decision in Shah Bano,
the
Parliament
enacted
the
Muslim
Women (Protection of Rights on Divorce)
Act,1986 (hereinafter referred as Act) to
protect the rights of Muslim women who
have been divorced by, or have obtained
divorce from, their husbands and to
provide for matters connected therewith or
identical thereto. A "divorced woman" is
defined under Section 2(a) of the Act to
mean a divorced woman who was married
according to Muslim Law, and has been
divorced by, or has obtained divorce from
her husband in accordance with Muslim
Law; " Iddat period" is defined under
Section 2(b) of the Act to mean, in the
case of a divorced woman,- (i) three
menstrual courses after the date of divorce,
if she is subject to menstruation; (ii) three
lunar months after her divorce, if she is not
subject to menstruation; and (iii) if she is
enceinte at the time of her divorce, the
period between the divorce and the
delivery of her child or the termination of
her pregnancy whichever is earlier.

15. Section 3 of the Act overrides all
other laws and provides that a divorced
2 All. Jubair Ahmad Vs. Ishrat Bano
869
woman shall be entitled to - (a) a
reasonable
and
fair
provision
and
maintenance to be made and paid to her
within the period of iddat by her former
husband; (b) where she maintains the
children born to her before or after her
divorce, a reasonable provision and
maintenance to be made and paid by her
former husband for a period of two years
from the respective dates of birth of such
children; (c) an amount equal to the sum of
mahr or dower agreed to be paid to her at
the time of her marriage or at any time
thereafter according to Muslim Law; and
(d) all the properties given to her before or
at the time of marriage or after the
marriage by her relatives, friends, husband
and any relatives of the husband or his
friends.

16. The constitutional validity of the
Muslim Women (Protection of Rights on
Divorce) Act, 1986 was upheld in Danial
Latifi vs Union of India, AIR 2001 SC
3958. The Supreme Court laid emphasis
that in interpreting the provisions where
matrimonial relationship is involved, the
social conditions prevalent in our society
should be taken into consideration. In
society, apparently there exists a great
disparity in the matter of economic
resourcefulness between a man and a
woman. The Court observed:

"Our society is male dominated
both economically and socially and
women
are
assigned,
invariably,
a
dependent role, irrespective of the class of
society to which she belongs. A woman on
her marriage very often, though highly
educated, gives up her all other avocations
and entirely devotes herself to the welfare
of the family, in particular she shares with
her husband, her emotions, sentiments,
mind and body, and her investment in the
marriage is her entire life - a sacramental
sacrifice of her individual self and is far
too enormous to be measured in terms of
money. When a relationship of this nature
breaks up, in what manner we could
compensate her so far as emotional
fracture
or
loss
of
investment
is
concerned, there can be no answer. It is a
small solace to say that such a woman
should be compensated in terms of money
towards her livelihood and such a relief
which partakes basic human rights to
secure gender and social justice is
universally
recognised
by
persons
belonging to all religions and it is difficult
to perceive that Muslim law intends to
provide a different kind of responsibility
by passing on the same to those
unconnected with the matrimonial life
such as the heirs who were likely to inherit
the property from her or the wakf boards.
Such an approach appears to us to be a
kind of distortion of the social facts.
Solutions to such societal problems of
universal
magnitude
pertaining
to
horizons of basic human rights, culture,
dignity and decency of life and dictates of
necessity in the pursuit of social justice
should be invariably left to be decided on
considerations other than religion or
religious faith or beliefs or national,
sectarian, racial or communal constraints.
Bearing this aspect in mind, we have to
interpret the provisions of the Act in
question."

17. Referring to various religious
texts of Islam and opinions of eminent
authors of Muslim Personal Law on the
concept of mata or provision, the Supreme
Court pointed out that a careful reading of
the provisions of the Act would indicate
that a divorced woman is entitled to a
reasonable
and
fair
provision
for
maintenance. Parliament seems to intend
870 INDIAN LAW REPORTS ALLAHABAD SERIES
that the divorced woman gets sufficient
means of livelihood, after the divorce and,
therefore, the word 'provision' indicates
that something is provided in advance for
meeting some needs. In other words, at the
time of divorce the Muslim husband is
required to contemplate the future needs
and make preparatory arrangements in
advance
for
meeting
those
needs.
Reasonable and fair provision may include
provision for her residence, her food, her
clothes, and other articles. The Court said that
the wordings of Section 3 of the Act appear to
indicate that the husband has two separate and
distinct obligations : (1) to make a 'reasonable
and fair provision' for his divorced wife; and
(2) to provide 'maintenance' for her. The
emphasis of this section is not on the nature or
duration
of
any
such
'provision'
or
'maintenance', but on the time by which an
arrangement for payment of provision and
maintenance should be concluded, namely,
'within the iddat period'. If the provisions are so
read, the Act would exclude from liability for
post-iddat period maintenance to a man who
has already discharged his obligations of both
'reasonable
and
fair
provision'
and
'maintenance' by paying these amounts in a
lump sum to his wife, in addition to having
paid his wife's mahr and restored her dowry as
per Section 3(1)(c) and 3(1)(d) of the Act. The
words 'a reasonable and fair provision and
maintenance to be made and paid' as provided
under Section 3(1)(a) of the Act cover different
things. The use of two different verbs - "to be
made and paid to her within the iddat period",
clearly indicates that a fair and reasonable
provision is to be made while maintenance is
to be paid. It is why no such expression has
been used in section 4 of the Act, which
empowers the magistrate to issue an order for
payment of maintenance to the divorced
woman against various of her relatives.

18. Therefore, the Supreme Court held:

"While upholding the validity of
the Act, we may sum up our conclusions:
Court holds that - 1) A Muslim husband is
liable to make a reasonable and fair
provision for the future of the divorced
wife
which
obviously
includes
her
maintenance as well. Such a reasonable
and fair provision extending beyond the
iddat period must be made by the husband
within the iddat period in terms of Section
3(1)(a) of the Act. 2) Liability of Muslim
husband to his divorced wife arising under
Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat
period."

19. In Shabana Bano v. Imran
Khan (2010) 1 SCC 666, in a petition for
maintenance under section 125, one of the
objections raised by the husband was that
he has already divorced the wife prior to
filing of petition in accordance with
Muslim Law and under the provisions of
Muslim Women (Protection of Rights on
Divorce) Act, 1986 she is not entitled to
any maintenance after the divorce and
after the expiry of the iddat period. The
learned Family Court partly allowed the
wife's application directing the husband to
pay Rs.2000/- per month as maintenance
allowance from the date of institution of
petition to the date of divorce, and
thereafter to the period of iddat but amount
of maintenance thereafter was denied. The
order was upheld by the High Court. The
question that arose for consideration
before the Supreme Court was whether a
Muslim divorced wife would be entitled
for
maintenance
from
her
divorced
husband under Section 125 of the Cr.P.C.
and, if yes, then through which forum?

20. The Supreme Court mentioned
that the purpose the Family Court Act was
essentially to set up family courts for the
2 All. Jubair Ahmad Vs. Ishrat Bano
871
early
settlement
of
family
disputes,
emphasizing on conciliation and achieving
socially
desirable
results
without
adherence to rigid rules of procedure and
evidence. The Act seeks to exclusively
provide within jurisdiction of the family
courts the matters relating to maintenance,
including proceedings under Chapter IX of
the Cr.P.C. Section 7 of the Family Act
deals with Jurisdiction and Section 20 of
the Family Court Act makes it crystal clear
that the provisions of this Act shall have
overriding effect on all other enactments in
force dealing with this issue. Therefore, a
Family Court established under the Family
Act shall exclusively have jurisdiction to
adjudicate upon the applications filed
under Section 125 of Cr.P.C. Thereafter,
the Court referred to the various provisions
of the Muslim Women (Protection of
Rights on Divorce) Act and quoted with
approval the following observation made
in Danial Latifi (supra):

"A
comparison
of
these
provisions with Section 125, CrPC will
make
it
clear
that
requirements
provided in Section 125 and the
purpose, object and scope thereof
being
to
prevent
vagrancy
by
compelling those who can do so to
support those who are unable to
support themselves and who have a
normal and legitimate claim to support
are satisfied. If that is so, the argument
of the petitioners that a different
scheme being provided under the Act
which is equally or more beneficial on
the interpretation placed by us from
the one provided under the Code of
Criminal Procedure deprive them of
their right, loses its significance. The
object and scope of Section 125, CrPC
is to prevent vagrancy by compelling
those who are under an obligation to
support those who are unable to
support themselves and that object
being fulfilled,..... ."

21. The Supreme Court referred
Iqbal Bano v. State of UP (2007) 6
SCC
785
which
followed
Vijay
Kumar Prasad v. State of Bihar,
(2004) 5 SCC 196 to hold that
proceedings under Section 125, Cr.P.C.
are civil in nature and laid down that a
petition under Section 125 of the
Cr.P.C. filed by a divorced woman
would be maintainable before the
Family Court as long as appellant does
not
remarry
and
the
amount
of
maintenance to be awarded under
Section 125 of the Cr.P.C. cannot be
restricted for the iddat period only. It
was held:

"Cumulative reading of the
relevant portions of judgments of this
Court in Danial Latifi, (2001 AIR SCW
3932) (supra) and Iqbal Bano, (2007
AIR SCW 3880) (supra) would make it
crystal clear that even a divorced
Muslim woman would be entitled to
claim maintenance from her divorced
husband, as long as she does not
remarry. This being a beneficial piece
of legislation, the benefit thereof must
accrue to the divorced Muslim women.

In the light of the aforesaid
discussion, the impugned orders are
hereby set aside and quashed. It is held
that even if a Muslim woman has been
divorced, she would be entitled to
claim maintenance from her husband
under Section 125 of the Cr.P.C. after
the expiry of period of iddat also, as
long as she does not remarry."

22. In Shamim Bano v. Asraf Khan
(2014) 12 SCC 636, again the issue was
872 INDIAN LAW REPORTS ALLAHABAD SERIES
whether the appellant's application for
grant of maintenance under Section 125 of
the Code is to be restricted to the date of
divorce and because of filing of an
application under Section 3 of the Act
after the divorce for grant of mahr and
return of gifts would disentitle the wife to
sustain the application under Section 125
of the Code.

23. Referring to Shabana Bano
(supra) in which, following Danial Latifi
(supra), it has been ruled 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,' the Supreme Court
held:

"The aforesaid principle clearly
lays down that even an application has
been filed under the provisions of the Act,
the Magistrate under the Act has the
power to grant maintenance in favour of a
divorced
Muslim
woman
and
the
parameters and the considerations are the
same as stipulated in Section 125 of the
Code."

24. Regarding the plea that the wife
had already taken recourse to Section 3 of
the Act after divorce took place and
obtained relief, the application for grant of
maintenance under Section 125 of the
Code would only be maintainable till she
was divorced, the Court pointed out that
during the pendency of her application
under Section 125 of the Code the divorce
took place and on the application of wife
under Section 3 of the Act, the learned
Magistrate directed for return of the
articles, payment of quantum of mahr and
also thought it appropriate to grant
maintenance for the iddat period. Thus no
maintenance had been granted to the wife
beyond the iddat period by the learned
Magistrate as the petition was different.
That apart, the authoritative interpretation
in Danial Latifi (supra) was not available.
Saying that it would be travesty of justice
if the wife is made remediless and
therefore, if an application under Section 3
of the Act for grant of maintenance is
filed, the parameters of Section 125 of the
Code would have been made applicable.
The Court observed:

"Another aspect which has to be
kept uppermost in mind is that when the
marriage breaks up, a woman suffers from
emotional fractures, fragmentation of
sentiments, loss of economic and social
security and, in certain cases, inadequate
requisites for survival. A marriage is
fundamentally a unique bond between two
parties. When it perishes like a mushroom,
the dignity of the female fame gets
corroded.
It
is
the
law's
duty
to
recompense, and the primary obligation is
that of the husband."

25. In Shamima Farooqui v.
Shahid Khan AIR 2015 SC 2025, the
application
of
wife
for
grant
of
maintenance was resisted by the husband
alleging that he had already given divorce
to her and has also paid the Mehar to her.
The Supreme Court referred with approval
the view expressed in Shamim Bano v.
Asraf Khan (supra), Shabana Bano v.
Imran Khan (supra), Danial Latifi
(supra) and Khatoon Nisa v. State of UP
(2002) 6 SCALE 165 and laid down that
there can be no shadow of doubt that the
divorced Muslim woman is entitled to
claim maintenance under Section 125,
CrPC.
2 All. Jubair Ahmad Vs. Ishrat Bano
873

27. Thus from the above discussion,
it is clear that after the passing of the Act,
from the judgment in Danial Latifi
(supra) to Shamima Farooqui (supra), it
is clear that the Supreme Court has
interpreted the provisions of the Act and
section 125 of the Code in such a way so
as to give recognition to the right of
divorced
Muslim
wife
to
claim
maintenance under section 125 even for
the period beyond iddat period and for the
whole life unless she is disqualified for the
reasons such as entering into marriage
with someone else. Therefore, I find no
force in the argument that the divorced
Muslim wife is not entitled to maintenance
beyond iddat period.

Inability to Pay and Quantum of
Maintenance

28. In every petition, generally, a
plea is advanced by the husband that he
does not have the means to pay, for he
does not have a job or his business is not
doing well. In this case it has been
submitted on behalf of the revisionist that
after more than 10 years from the date of
decision of the first case, this application
has been filed. The revisionist has already
married after divorce from the respondent
wife and he has children by her second
wife and moreover he has to support his
ailing parents and other members of the
family. Therefore, for him it will not be
possible to spare money for his divorced
wife against her maintenance. Regarding
such pleas, the judicial response has been
always very clear that it is the personal
liability of the husband to pay maintenance
to his wife which includes the divorced
wife. The husband is not discharged from
his this liability on such grounds. Thus, in
Chander Prakash Bodhraj v. Shila Rani
Chander Prakash AIR 1968 Delhi 174, it
was laid down:

"An able-bodied young man has
to be presumed to be capable of earning
sufficient money so as to be able
reasonably to maintain his wife and child
and he cannot be heard to say that he is
not in a position to earn enough to be able
to maintain them according to the family
standard. It is for such able-bodies person
to show to the Court cogent grounds for
holding that he is unable to reasons
beyond his control, to earn enough to
discharge
his
legal
obligation
of
maintaining his wife and child. When the
husband does not disclose to the Court the
exact
amount
of
his
income,
the
presumption will be easily permissible
against him."

29. Further in Jabsir Kaur Sehgal v.
District Judge Dehradun (1997) 7 SCC
7, the Supreme Court laid down the
following yardstick for determining the
liability as well as the amount of
maintenance:

"The court has to consider the
status of the parties, their respective
needs, the capacity of the husband to pay
having regard to his reasonable expenses
for his own maintenance and of those he is
obliged under the law and statutory but
involuntary payments or deductions. The
amount of maintenance fixed for the wife
should be such as she can live in
reasonable comfort considering her status
and the mode of life she was used to when
she lived with her husband and also that
she does not feel handicapped in the
prosecution of her case. At the same time,
the amount so fixed cannot be excessive or
extortionate."

30. In Shamima Farooqui (supra),
the Supreme Court referred to the
aforesaid observation on the point and held
874 INDIAN LAW REPORTS ALLAHABAD SERIES
the reduction of 50% in the amount of
maintenance made by the High Court is
based on no reasoning and is illegal and
not sustainable under law. Upholding and
restoring the order passed by the learned
Family Court, it was observed by the
Supreme Court:

"Be it clarified that sustenance
does not mean and can never allow to
mean a mere survival. A woman, who is
constrained to leave the marital home,
should not be allowed to feel that she has
fallen from grace and move hither and
thither arranging for sustenance. As per
law, she is entitled to lead a life in the
similar manner as she would have lived in
the house of her husband. And that is
where the status and strata of the husband
comes into play and that is where the legal
obligation of the husband becomes a
prominent one. As long as the wife is held
entitled to grant of maintenance within the
parameters of Section 125, CrPC, it has to
be adequate so that she can live with
dignity as she would have lived in her
matrimonial
home.
She
cannot
be
compelled to become a destitute or a
beggar."

31. Saying such pleas to be 'only
bald excuses' and have 'no acceptability in
law', the Court said:

"If the husband is healthy, able
bodied and is in a position to support
himself, he is under the legal obligation to
support his wife, for wife's right to receive
maintenance under Section 125, CrPC,
unless disqualified, is an absolute right."

32. In the present case, the admitted
fact on behalf of the husband is that he is a
teacher in a government school and his
monthly basic
pay
is
14000/-
and
naturally, if DA is added, the monthly
income would reach to 25 to 30 thousands.
It is pertinent to mention that the wife,
alleging the income of the husband to be
25 thousands monthly, has claimed 10
thousands monthly maintenance. The
learned Family Court has awarded 3000/-
monthly as maintenance to wife which is
not at all in the higher side. It is held that
the amount of maintenance must be
according to status of parties and to satisfy
the minimum and basic needs of the wife.
Being a teacher, the plea of the husband
regarding his financial constraint cannot
be given any weight.

Applicability of the Principles of
Res-judicata and Maintainability of
Second Application

33. The other limb of argument is
regarding
maintainability
of
second
application and applicability of principle
of res-judicata. It is admitted case that a
case was filed by the wife under section
125 Cr.P.C. claiming maintenance for
herself and her daughter as case no. 34 of
2002 which has been decided by the
judgment dated 09.07.2002 by Civil Judge
(Junior Division), Kaushambi and copy of
the judgment has been filed by the wife.
The husband divorced the respondent wife
on 27.09.2001 and thereafter the said case
was
decided
keeping
in
view
the
provisions of the Act, and the husband was
directed to give maintenance till the date
of divorce. The application for the
maintenance of the daughter, however,
was allowed, granting a maintenance of
Rs. 500/- monthly to her. Therefore, it has
been argued that when the claim of
maintenance has been rejected after
contest by the court below, a further
application demanding maintenance under
section 125 Cr.P.C. is not permissible and
the same is barred by the principle of res-
2 All. Jubair Ahmad Vs. Ishrat Bano
875
judicata. Therefore, the question for
consideration before the court is that the
decision in the earlier case will preclude
the husband and prevent the wife from
claiming maintenance under section 125
Cr.P.C. From the perusal of the said
judgment, it appears that the learned court
below took the view that Muslim divorced
wife in a case pending under section 125
Cr.P.C. can be awarded maintenance till
the period of Iddat and not beyond it.
Clearly the said judgment is based on the
provisions of the Act.

34. Section 125 of the Code of
Criminal Procedure has been enacted to
achieve a social object and the object is to
prevent vagrancy and destitution and to
provide speedy remedy to deserted or
divorced wife, minor children and infirm
parents in terms of food, clothing and
shelter and minimum needs of one's life.
The Supreme Court has been always of the
view that maintenance to the wife is an
issue of gender justice and the obligation
of the husband is on a higher pedestal. In
Capt. Ramesh Chander Kaushal v.
Veena Kaushal, AIR 1978 SC 1807, the
Supreme Court remarked:

"The brooding presence of the
Constitutional empathy for the weaker
sections like women and children must
inform interpretation if it has to have
social relevance."

35. In Chaturbhuj vs Sita Bai
(2008) 2 SCC 316, the Supreme Court
expressed the view that section 125 is a
measure of social justice and is specially
enacted to protect women and children and
it gives effect to fundamental rights and
natural duties of a man to maintain his
wife, children and parents when they are
unable to maintain themselves. The
Supreme Court observed:

"Section 125, CrPC is a measure
of social justice and is specially enacted to
protect women and children and as noted
by this Court in Captain Ramesh Chander
Kaushal v. Veena Kaushal (1978) 4 SCC
70 falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of
the Constitution of India. It is meant to
achieve a social purpose. The object is to
prevent vagrancy and destitution. It
provides a speedy remedy for the supply of
food, clothing and shelter to the deserted
wife. It gives effect to fundamental rights
and natural duties of a man to maintain
his wife, children and parents when they
are unable to maintain themselves. The
aforesaid position was highlighted in
Savitaben Somabhai Bhatiya v. State of
Gujarat (2005) 3 SCC 636."

36. In Shabana Bano v. Imran
Khan
(supra)
in
a
petition
for
maintenance under section 125, one of the
objections raised by the husband was that
he has already divorced the wife prior to
filing of petition in accordance with
Muslim Law and under the provisions of
Muslim Women (Protection of Rights on
Divorce) Act, 1986 she is not entitled to
any maintenance after the divorce and
after the expiry of the iddat period. The
Supreme Court however held that even
after the disposal of application under
section 3 of the Act, the divorced wife is
entitled to claim maintenance under
section 125 beyond the iddat period and
till she remarries. The same view has been
followed in Shamim Bano v.