Muslim Wife Can Claim Maintenance From Husband Even After Divorce If She Is Unable To Maintain Herself: Patna High Court

A Single Bench of Justice Jitendra Kumar observed, “…despite the Act of 1986, a Muslim wife is entitled to get maintenance from her husband during the subsistence of her marriage under Section 125 Cr.PC, if she is unable to maintain herself. Even after divorce, she is entitled to get maintenance from her former husband under Section 125 Cr.PC if she is unable to maintain herself despite payment of maintenance for iddat period or payment of Dainmehar, if the former husband has not made provisions for her life during iddat period or the provisions made during the iddat period is not sufficient to maintain herself at the time of the application under Section 125 Cr.PC”.

The Petitioners were represented by Advocate Ajay Kumar Singh, while Advocate Upendra Kumar appeared for the Respondent. Advocate Soni Srivastava was appointed as the Amicus Curiae in the matter.

Brief Facts

The wife, Petitioner No.1 herein, was married to the husband as per Islamic rites and customs in 2007. After marriage, she resided in her matrimonial home. A daughter was born to them out of wedlock. The wife averred that the husband began demanding an additional dowry of Rs. 2,00,000/-, and upon non-fulfillment of this demand, she was subjected to cruelty and subsequently ousted from the matrimonial home. As a result, the wife filed a criminal case under Section 498A of the Indian Penal Code, 1860 (IPC).

As per the wife’s averments, the husband ran a boutique in Bombay, earning Rs. 30,000/- monthly, in addition to income from agricultural land. Before the Trial Court, the wife sought Rs. 2,000/- as maintenance.

Before the Trial Court, the husband alleged that the wife did not live with him wholeheartedly. He further submitted that, on one occasion, upon returning from Bombay, he discovered that she was living with another man and no longer recognized him as her husband. He claimed that due to the wife’s adultery, their relationship ended, and he filed for divorce. Therefore, he argued that she was not entitled to receive any maintenance from him.

The Trial Court passed an order directing the husband to pay Rs. 1,500/- as maintenance to the wife, from the date of the order along with Rs. 5,000/- as litigation cost. However, the Trial Court did not pass an order with regard to payment of maintenance for the daughter, even though she was a party in the maintenance proceedings. Aggrieved by the order of the Trial Court, the wife and minor daughter approached the High Court.

Contentions

The wife contended that, despite the minor daughter being born out of wedlock, she was still entitled to maintenance from the father, the Respondent herein. She further submitted that the quantum of maintenance awarded by the Trial Court was inadequate considering the earnings of the husband and that the amount should have been made payable from the date of filing the maintenance petition rather than from the date of the order.

The husband submitted that the wife was not entitled to maintenance due to her alleged adultery. However, the order had not been challenged by him. The wife and her minor daughter had filed the present petition for enhanced maintenance. The husband further stated that the marriage had been dissolved through divorce, maintenance for the iddat period had been paid, along with the Dain-Mehar, and therefore, the wife was not entitled to further maintenance.

Reasoning of the Court

The Court noted that the husband had never mentioned in the pleadings that the wife had committed adultery; it only emerged during the evidence stage. It observed that, as a settled principle of law, any evidence presented without prior pleading could not be taken into account.

The Court noted that the husband neither cross-examined nor provided evidence to refute his income claim hence it accepted the wife’s assertion and held his minimum income at Rs. 30,000/- per month and further as he did not challenge her financial status the Petitioner was deemed unable to support herself and her minor daughter.

The Bench observed, “There is no dispute that as per Section 125 Cr.PC, the minor daughter of the opposite party is entitled to get maintenance from her father. But I find that no order has been passed by learned Family Court to pay any maintenance to the petitioner No. 2/minor daughter.”

The Court added, “…it would be suffice to say that despite the Act of 1986, a Muslim wife is entitled to get maintenance from her husband during the subsistence of her marriage under Section 125 Cr.PC, if she is unable to maintain herself. Even after divorce, she is entitled to get maintenance from her former husband under Section 125 Cr.PC if she is unable to maintain herself despite payment of maintenance for iddat period or payment of Dainmehar, if the former husband has not made provisions for her life during iddat period or the provisions made during the iddat period is not sufficient to maintain herself at the time of the application under Section 125 Cr.PC.”

The Bench further noted that as per the material on record, the wife and the minor daughter were unable to maintain themselves from the date of filing the maintenance petition and the husband was not paying any maintenance amount to them hence maintenance should have been made payable from the date of filing the petition and not from the date of the order passed by the Family Court, and even Section 125(2) enables the Court to order payment of maintenance from the date of the application.

Consequently, the Court allowed the petition, and directed the husband to pay Rs. 4,000/- per month to the wife and the minor daughter as maintenance.

Cause Title: Hasina Khatoon & Anr v. Aszad Ansari, (Criminal Revision No.164 of 2019)

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