A divorced Muslim woman is entitled to claim maintenance under Section 125 Cr. P.C., and the right of maintenance available to a wife from her husband is absolute and not affected by divorce unless the wife is disqualified due to remarriage or sufficient earning.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. The instant application has been preferred challenging the propriety and correctness of the order dated 03.05.2006, passed by learned Principal Judge, Family Court, Ranchi, in Maintenance Case No. 56 of 2004; whereby the learned Family Court, Ranchi has held that the petitioner No. 1-(wife of O.P. No. 2) is not entitled to any maintenance allowance on the ground that she has already been divorced by the O.P. No. 2 and petitioner No. 2 (child of O.P. No. 2) is only entitled to monthly allowance of Rs. 600/- per month from June, 2004; that too is very inadequate.

3. The prosecution case in brief is that the Nuzhat Jahan-petitioner No. 1 and Taiyab Ali-O.P. No. 2 were married on 02.04.2000 according to Muslim rites and customs. The petitioner No. 1 went to her sasural where she was subjected to cruelty for dowry demand of Rs. 2,00,000/- for purchasing of a Car. The petitioner No. 1 was deprived of proper food and clothes. The petitioner No. 1 even under such circumstances gave birth to a male child namely Abu Talha @ Nahid Hussain (Petitioner No. 2).

That on 25.03.2004, the petitioner No. 1 along with her child was driven out of her matrimonial house and had to take shelter in the house of a neighbour who sent her to her parent’s house. The petitioner No. 1 is unable to maintain herself and her child. The opposite party No. 2 is owner of a Fair Price Shop under the Public Distribution System of the Government. He also works as a contractor and has got sufficient landed property. His monthly income is not less than Rs. 40,000/- from the sources.

4. Ms. Saman Ahmad, learned amicus for the petitioners submits that the petitioner No. 1 is not divorced by the O.P. No. 2. She further contends that even assuming but not admitting that the petitioner no. 1 has been divorced by the opposite party No. 2; still she is entitled for maintenance as per the settled law.

She further submits that under Muslim law, father is under the obligation to maintenance his legitimate child until he/she attains majority. The amount of Rs. 600/- as awarded by the learned Family court to petitioner No. 2 as monthly allowance is too meagre during these days.

She further disputed the documents exhibited by the O.P. No. 2 before the learned trial court. She lastly submits that even if a Muslim woman has been divorced she would be entitled to claim maintenance from her husband under Section 125 Cr. P.C. even after the expiry of period of Iddat also as long as she does not remarry.

5. Mr. A. Allam, learned senior counsel for the O.P. No. 2 submits that there is no error in the impugned order as the learned Family Court has rightly denied maintenance to petitioner no. 1 as she was divorced by the O.P. No. 2. Further, the Family Court has duly awarded maintenance of Rs. 600/- per month to petitioner No. 2 and no interference is required.

6. Having heard learned counsel for the parties and after going through the impugned order it appears that the sole reason for disallowing maintenance to the petitioner No. 1 is that she was divorced by the opposite party No. 2.

7. For brevity, relevant portion of the order is quoted herein-below:

“O.P. has filed documents Ext. B and B/1 which are Talaknama and its translated copy to prove that on 8.2.2004 he had divorced his wife Nuzhat Jahan which was confirmed in the meeting of Anjuman Islamia held on 9.2.2004. The document shows that the Dain Mehar and expenses of Iddat period along with the expenses of marriage was handed over to the parents of the Applicant along with the entire articles and ornaments given in the marriage. I do not find any reason to disbelieve the testimony of the O.P. and his witnesses along with documents Ext. B and B/1 that he has already divorced Applicant No. 1 on 8.2.2004. Therefore, I hold that the Applicant No. 1 Nuzhat Jahan is not entitled to any maintenance allowance. However, her child Abu Talha @ Nahid Hassan aged about 4 years is ent