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2008 Supreme(P&H) 1097
PUNJAB & HARYANA HIGH COURT
Vinod K.Sharma, J.
Sahun
Versus
Asgari
Decided On : MAY 26, 2008
A divorced Muslim wife is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, despite the existence of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Headnote:
Maintenance - Muslim Divorced Wife - The court held that a divorced Muslim wife is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, as the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not preclude her from seeking maintenance through Section 125.
Fact of the Case:
The petitioner, a Muslim husband, sought to quash the order directing him to pay maintenance to his divorced wife and their children.
Finding of the Court:
The court found that the divorced Muslim wife is entitled to maintenance under Section 125 of the Code of Criminal Procedure, despite the existence of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Issues: Interpretation of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and its impact on the entitlement of a divorced Muslim wife to claim maintenance.
Ratio Decidendi: The court relied on the decision in the case of Sarban Ali v. Naziran, which held that a divorced Muslim wife can seek maintenance under Section 125 of the Code of Criminal Procedure, as the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not preclude her from doing so.
Final Decision: The petition was dismissed, affirming the entitlement of the divorced Muslim wife to claim maintenance under Section 125 of the Code of Criminal Procedure.
Vinod K.Sharma, J.
1. This petition under Section 482 of the Code of Criminal Procedure has been moved for quashing of order dated 8.7.2006 as well as order dated 11.2.2004 whereby the petitioner (Muslim husband) has been directed to pay maintenance to respondent No. 1 (Muslim divorced wife) as well as respondents Nos. 2 and 3 their children.
2. The contention of the learned Counsel for the petitioner is that the divorced Muslim wife is not entitled to maintenance under Section 125 Cr.P.C. as the Muslim Women (Protection of Rights on Divorce) Act, 1986 has been enacted so as to protect the right of Muslim Women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto.
3. This Court in the case of Sarban Ali V/s. Naziran Crl. Misc. No. 36399-M of 2003 decided on 30.4.2008 has been pleased to lay down that the only remedy with the divorced Muslim wife is to move an application under Section 125 of the Code of Criminal Procedure to claim maintenance as no maintenance can be granted to her under Section 3/4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The said decision is based on the judgment of the Hon ble Supreme Court in the case of Denial Latifi and Anr. V/s. Union of India 2001 (4) R.C.R. (Criminal) 468.
4. The learned Counsel for the petitioner contended that while passing the said judgment the Court has not taken into consideration the Muslim Women (Protection of Rights on Divorce) Act, 1986. This p.ea of the petitioner cannot be accepted in view of the decision of this Court in the case of Saran Ali v. Naziran (supra).
5. No merit. Dismissed.
