The Allahabad High Court on October 17 said a divorced Muslim woman could not claim maintenance under Section 125 of the Criminal Procedure Code as a special law is in force to protect the rights of women of the community on divorce. Justice V K Verma expressed his disagreement with an order of March 31, 2008 when another judge of the court had held that a divorced Muslim woman was entitled to maintenance under the aforesaid section of the CrPC. The court was hearing a revision petition filed by one Shahid Jamal Ansari who had challenged the order passed by Family Court, Gorakhpur, dated June 3 this year whereby the petitioner had been directed to pay Rs 2000 a month to his divorced wife Anees Fatima, in addition to imposition of cost of Rs 1000.
The petitioner had claimed that Fatima had moved an application under Section 125 CrPC on June 27, 2003, much after their divorce on June 1 the same year, alleging she was his legally wedded wife but was driven out of home by him and claimed maintenance pleading that she was unable to maintain herself.
Dismissing the revision petition, the court, however, remarked that ‘after the judgement of the Supreme Court’s constitutional bench in the Shah Bano case, there was a big uproar in the country. Consequently, Parliament enacted Muslim Women (Protection of Rights on Divorce) with the intention of making the decision of the Shah Bano case ineffective’. “After enforcement of the 1986 Act, a divorced Muslim woman can claim ‘fair provision’ and ‘maintenance’ under the 1986 Act only and she is not entitled to have recourse to Section 125 CrPC claiming for maintenance from her former husband”. The court, however, added that a Muslim woman was entitled to maintenance under Section 125 of CrPC only if she has been separated from but not divorced by her husband.