J. Venkatesan

Apex court sets aside Allahabad High Court judgment

  • High Court asked to have fresh look into Iqbal Bano's claim
  • 1986 law will not be a bar for making a claim under Cr.PC: court

    New Delhi: A Muslim woman deserted by her husband is entitled to maintenance from him under Section 125 of the Criminal Procedure Code (Cr. PC) notwithstanding the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, enacted in the wake of the Shah Bano judgment.

    In the Mohd. Ahmad Khan vs. Shah Bano Begam case, the Supreme Court had held that "if a divorced woman is able to maintain herself, the husband's liability ceases with the expiry of the period of `iddat' (three menstrual courses after the date of divorce, that is, roughly three months), but if she is unable to maintain herself after the period, she is entitled to have recourse to Section 125 Cr.PC."

    This decision led to a controversy and to dilute the judgment in the Shah Bano case, the Muslim Women (Protection of Rights on Divorce) Act, 1986, was passed.

    In the present case, Iqbal Bano of Aligarh deserted by her husband claimed maintenance under Section 125 Cr.PC. In 1994, the trial court directed the husband to pay Rs. 450 a month as maintenance. On a revision petition in 2001, the Allahabad High Court accepted the husband's contention that as he had divorced his wife by pronouncing triple talak, the claim for maintenance must be made only under the 1986 Act and not under Section 125. The present appeal by Iqbal Bano is against this verdict.

    She contended that there was no bar on a Muslim woman filing a petition under Section 125 Cr.P.C.

    The 1986 Act would apply only to a divorced woman and since her husband had not divorced her in a proper manner, she could claim maintenance under Section 125.

    A Bench consisting of Justices Arijit Pasayat and D.K. Jain agreed with her contention and set aside the High Court judgment. It directed the Allahabad High Court to have a fresh look into the maintenance claim.

    The Bench, quoting an earlier Constitution Bench decision upholding the validity of the 1986 law, made a distinction between the provisions of the 1986 Act and Section 125 Cr.PC.

    It said: "Under the 1986 Act the husband has two separate and distinct obligations, viz. to a make a reasonable and fair provision for his divorced wife [for her residence, food, clothes and other articles], and to provide maintenance for her. Though it may look ironical that the enactment intended to reverse the decision in the Shah Bano case it actually codifies the very rationale contained therein."

    It said a deserted Muslim woman could still avail herself of the provisions of Section 125 to claim maintenance from her husband and the 1986 law would not be a bar.

    As the case had been pending for nearly two decades, the Bench asked the High Court to dispose of the appellant's application within six months.