ORAL JUDGMENT : - The petitioner - husband has challenged the impugned order dated 19 -9 -1999 passed by the Family Court Aurangabad, in Petition No. E -789/1998 whereby the petitioner has been directed to pay maintenance amount of Rs. 300/ - per month to the respondent - wife from the date of the application by holding that the petitioner has refused and neglected to maintain her and she is entitled to the maintenance even though the petitioner has given divorce to her.

2. The respondent had filed earlier Misc. Application No. 30/1996 under section 125 of the Code of Criminal Procedure (Cr.P.c.) in the Court of the Judicial Magistrate, First Class, Gangapur (JMFC). The parties are governed by the Mohammedan Law. By the said order the JMFC had granted the maintenance in following terms.

"1) The petition of the petitioner No.2 Asma (minor) is granted totally from the date of filing this present petition till future period she is liable for maintenance. The respondent is ordered and directed to pay monthly maintenance @ Rs. 250/ - p.rn. to her towards her maintenance from the date of filing the present petition.

2) The petition for petitioner No.1 is partly allowed. The respondent is ordered and directed to pay monthly maintenance @ Rs. 300/ - (Say rupees Three hundred) to the petitioner No.1 towards her maintenance from the date of filing present petition till the date of divorce i.e. from July, 1994 to August, 1996 totally for 25 months at the rate of Rs. 300/ - per month.

3) He is further ordered directed to pay Rs. 300/ - per month to her towards maintenance during the Iddat period from the date of divorce i.e. for three months from 26 -8 -1996 to 26 -11 -1996.

4) He is further ordered directed to pay Mehar amount Rs. 786/ - to the petitioner immediately.

5) He is further ordered directed to pay Rs. 400/ - towards the costs of this proceeding."

This order remained unchallenged therefore became final between the parties.

3. The petitioner, therefore, has raised objection to the second application in question filed by respondent No. 1 - wife under section 125 of the Criminal Procedure Code on the ground that under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "Muslim Women Act") respondent No. 1 - wife cannot claim for maintenance as a divorcee. The JMFC has already granted maintenance till the date of divorce on earlier such application and she has already accepted Iddat and Mahr amounts and therefore has no right to ask for maintenance by invoking the provisions of section 125 of the Criminal Procedure Code again. The Family Court, however, has rejected the said objection on a foundation of Allabuksh Karim Shaikh vs. NoorJahan Allabuksh Shaikh, 1994 Mh.L.J. 1376, wherein, this Court has observed that a divorced wife has right to ask for maintenance from her husband and further that divorced wife is entitled for maintenance till re -marriage. Therefore, as respondent No.1 has not performed second marriage after the divorce, she has right to claim maintenance from the petitioner, and therefore, granted maintenance of Rs. 300/ - per month from the date of the application.

4. The relevant sections of the Muslim Women Act for the purpose of present petition are sections 3, 4 and 5 which are reproduced herein:

"3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. - (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to,(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair 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 pa

Click Here to Read the rest of this document