Julekha Bi and Another vs Mohammad Fazal

S.P. Khare, J.

This is a revision by a Muslim wife against that part of the order by which it has been held that she is not entitled to maintenance allowance from

her husband beyond the period of Iddat after she has been divorced.

Petitioner No. 1 Julekha Bi applied u/s 125 of the Code of Criminal Procedure (hereinafter to be referred to as the Code) claiming maintenance

allowance from her husband Mohammed Fazal. She was his legally wedded wife. By order dated 22-3-1993, the husband was directed to pay

Rs. 400/- per month to his wife for her maintenance. The husband complied with this order upto 10-5-1996. He divorced her on 11-5-1996. In

the proceeding u/s 125(3) of the Code instituted by the wife for execution of the original order he filed an application for cancellation of the order

on the ground that his wife is not entitled to claim maintenance allowance from him after her divorce. The learned Magistrate rejected the

application of the husband but in revision the Sessions Judge has held by the impugned order that the husband is not liable to pay maintenance

allowance to his divorced wife after the period of iddat.

It is contended on behalf of the wife that once an order u/s 125(1) of the Code was passed in her favour, she is entitled to execute it and the

provisions made in the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter to be referred to as the Act) do not debar her

from enforcing the order which was passed in her favour when the marriage subsisted. On the other hand, it is argued that the right of the wife to

claim maintenance from her husband came to an end when she was divorced by him and she cannot get any allowance beyond the period of iddat.

The point for determination is whether the order passed u/s 125(1) of the Code in favour of the Muslim wife can be enforced even after her

divorce by her husband.

A Muslim wife during the subsistence of her marriage can claim maintenance allowance from her husband u/s 125(1) of the Code. After her

divorce the provisions of the Act come into play. Muslim law limits the husband''s liability to provide for maintenance of the divorced wife to the

period of iddat only. That position has been reaffirmed and given statutory recognition by the Act. Section 3 of the Act starts with a non obstante

clause : ""notwithstanding anything contained in any other law for the time being in force"". Then her rights are enumerated in clauses (a) to (d) of that

section. u/s 4 of the Act, liability to pay maintenance to a divorced woman if she is unable to maintain herself after the period of iddat devolves

upon certain relatives other than the husband and if they are unable to pay then on the Wakf Board. u/s 5 it is provided that the husband and wife

would be governed by Sections 125 to 128 of the Code, if they exercise their option in the manner stated therein. If the option is not exercised,

they will not be governed by these provisions of the Code.

The right conferred upon a Muslim wife u/s 125 of the Code during the subsistence of the marriage is lost on her divorce by her husband. The

applicability of this section to a Muslim divorced wife has been superseded by the provisions of the Act. A divorced Muslim woman is no longer

entitled to get maintenance from her husband after the period of Iddat in view of the provisions of the Act. When the right is lost, the remedy u/s

125(3) of the Code cannot be enforced ""ubi jus ibi remedium"". The application for enforcement of the order u/s 125(3) of the Code would not be

maintainable. The husband can plead in the petition u/s 125(3) of the Code filed by his divorced wife that the divorce is ""sufficient cause"" for not

complying with the order u/s 125(1) of the Code. The original order ceases to be effective from the date of divorce. That order becomes

inexecutable in view of the provisions of the Act. As soon as the divorce is effected the marriage contract between the wife and the husband comes

to an end and thereafter a Muslim wife can enforce those rights only which have been given to her by the Act. A divorced Muslim woman cannot

claim maintenance u/s 125 of the Code from her former husband after the passing of the Act. The effect of the provisions of the Act is that she is

excluded from the inclusive definition of ""wife"" given in Explanation (b) to Section 125(1) of the Code.

The decision of the Supreme Court in Noor Saba Khatoon Vs. Mohd. Quasim, relates to the claim of the Muslim children from their father u/s 125

of the Code. There are certain observations which throw light upon the question whether a divorced Muslim wife is entitled to claim maintenance

under this provision of the Code even after passing of the Act. It has been observed that the Act was passed as a sequel to the judgment in Mohd.

Ahmed Khan Vs. Shah Bano Begum and Others, . From a plain reading of Section 3 of the Act, it is manifest that a reasonable and fair provision

has to be made for payment of maintenance to the Muslim wife during the period of iddat by her former husband. The non obstante clause in

Section 3 restricts and confines the right of a divorced Muslim woman to claim or receive maintenance for herself.

In Abdul Rashid v. Mst. Farida 1994 MPLJ 583 it has been held that the moment a muslim wife is divorced, provisions of the Act would come

into play and her application would be governed by the provisions of the Act for the period after the date of the divorce. It has also been held in

this case that a muslim husband is liable to maintain his wife during the period of iddat and not thereafter. The learned counsel for the petitioners has

cited the decision in Peer Mohd. v. Hasinabee 1995 MPLJ 664 1995 JLJ 110 in support of his plea, In that case it has been held that a divorce

granted at the revisional stage would not affect the order of maintenance u/s 125(1) of the Code. That is true. But under this provision,

maintenance allowance can be claimed upto the date of divorce only. A few other cases have been cited on behalf of the petitioners but in those

cases the question that has arisen in the present case did not come up for consideration. It is unnecessary to cite those cases.

This revision is dismissed.