Allahabad High Court: Brij Raj Singh, J., while addressing a maintenance case, observed that if a wife proves that she is unable to maintain herself, she will be entitled to maintenance.
A revision petition was preferred to quash the judgment and order passed by the Family Court so far as it related to the rejection of the application under Section 125 of the Criminal Procedure Code in respect of revisionist 1 and also enhance the amount of maintenance awarded to revisionist 2.
The wife and daughter filed an application under Section 125 CrPC.
The husband argued that as per Muslim Personal Law revisionist 1 was divorced Muslim wife, therefore, she had to pursue the maintenance case before the Muslim Women (Protection of Rights on Divorce) Act, 1986. Further, he argued that after divorce she was not entitled to maintenance.
The High Court stated that the OP 2’s argument that the revisionist was entitled to seek remedy as provided in Act, 1986 was not sustainable in the eyes of law.
In Court’s opinion, the proceeding under Section 125 CrPC is available to revisionist once she had taken resort to proceed under Section 125 CrPC.
It is true that the wife was divorced but as per the Supreme Court decision in Shayara Bano v. Union of India, (2017) 9 SCC 1, wherein it had been pronounced that if the divorce is declared in one go and the Fatava is issued, the same cannot be legal divorce and it has no legal force.
Bench stated that since the divorce given by OP 2 was not in accordance with the Quoran, hence the divorce given by OP 2 was not in accordance with law. In view of the judgment of the Supreme Court passed in the case of Iqbal Bano v. State of U.P., (2007) 6 SCC 785, it was not in accordance with law and the opposite party 2 could not prove the divorce as per law.
The High Court added that Section 125 CrPC is to be read in harmonious construction, but only on the basis of Section 125(4) CrPC the lower court came to the conclusion that revisionist 1 was deserted because she could not produce the evidence of physical assault and cruelty.
where the wife states that she has great hardships in maintaining herself and daughters, while her husband’s economic condition is quite good, wife would be entitled to maintenance.
High Court opined that revisionist 1 was entitled to maintenance under Section 125 CrPC.
The application for maintenance filed by revisionist 1 was allowed and it was observed that she would be entitled to Rs 7,000/- per month as maintenance. [Arshiya Rizvi v. State of U.P., 2022 SCC OnLine All 318, decided on 13-5-2022]
Advocates before the Court:
Counsel for Revisionist:- Nadeem Murtaza, Mohd. Mohsin
Counsel for Opposite Party:- Govt. Advocate, Purnendu Chakravarty