Introduction 

• This is a landmark judgment where the Supreme Court discussed that Muslim woman is entitled to maintenance post iddat period.  
• The judgment was delivered by a 2 judge bench – Justice Dipak Misra and Justice Vikramajit Sen. 

Facts 

• The Appellant (Shamim Bano) and the respondent (Ashraf Khan) were married on 17^th November 1993. 
• The Appellant lodged the case under Section 498A of Indian Penal Code, 1860 (IPC) read with Section 34 of IPC against the husband and his family members. Eventually, the accused persons were acquitted in the case. 
• The Appellant filed an application under Section 125 of Criminal Procedure Code, 1973 (CrPC) for grant of maintenance.  
• While the application for maintenance was pending, divorce between the appellant and the respondent took place. 
• At this point the appellant filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act). This application was allowed and the Court ordered the husband to pay a sum of Rs. 11,786 as mahr, return of goods and ornaments and a sum of Rs. 1,750 towards maintenance during the iddat period.  
• The application for maintenance under Section 125 of CrPC was dismissed. 
• An appeal was filed against the above order not granting maintenance and the revisional Court concurred with the opinion of the Magistrate. 
• Later, application was filed under Section 482 of CrPC against the above order. 
• The High Court declined to interfere with the orders passed by the Courts as aforesaid. 

Issues Involved

• Whether filing of an application under Section 3 of the Act after the divorce for the grant of mahr and the return of gifts would disentitle the appellant to sustain application under Section 125 of the CrPC? 
• Whether consent under Section 5 of the Act was imperative to maintain an application under Section 125 of CrPC?  

Observations 

• The Court in this case recapitulated the case laws and the turn of events: 
  • Mohd. Ahmed Khan v. Shah Bano Begum and others (1985): The core issue that was answered here was whether a Muslim divorced wife is entitled to maintenance under Section 125 of CrPC. The Court held in this case that the Muslim wife is entitled to maintenance and Section 127 does not absolve the husband of his liability under Section 125 of CrPC. 
  • After this judgment Parliament enacted the Act. 
  • The Constitutional validity of this Act was called in question in the case of Danial Latifi and another v. Union of India (2001) 
    • The Court upheld the constitutional validity of the Act. 
    • However, while interpreting Section 2 and Section 3 of the Act the Court held that the intention of the Legislature is that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs.  
  •  Khatoon Nisa v. State of U.P. and Ors. (2002):  
    • Under the Act itself when the parties agree the provisions of Section 125 of CrPC can be invoked as contained in Section 5 of the Act. 
    • Also, the parameters and consideration for granting maintenance under Section 5 of the Act and Section 125 of CrPC are the same. 
    • The Court observed that in view of the decision in the case of Danial Latifi v. Union of India (2001) the Magistrate retains the power to grant maintenance under Section 125 of CrPC and the parameters to exercise the powers are same. Also, the Court refused to interfere with the order granting maintenance to the divorced wife.   
• The High Court in this case had held that as the appellant had already taken recourse to Section 3 of the Act the application for grant of maintenance under Section 125 would only be maintainable till she was divorced. 
  • The Supreme Court doubted the above and observed that during the pendency of application under Section 125 of CrPC the divorce took place and the wife preferred an application under Section 3 of the Act for the return of articles, payment of mahr and also grant of maintenance during the iddat period. 
  • Thus, the Court held that in effect no maintenance has been granted beyond the iddat period as the petition was different.  
  • The Court held that it would be a travesty of justice if the appellant was denied relief. 
  • Also, even if an application under Section 3 of the Act is filed the parameters of Section 125 of CrPC would be applicable.    
• Thus, the Court held that even when the appellant-wife filed application under Section 3 of the Act, the Magistrate still retains the power of granting maintenance under Section 125 of CrPC. 
• If the wife has filed an application under Section 3 of the Act it does not mean she has exercised her option.  
• The Court also held that the plea of absence of consent was never raised by the husband. 
• Thus, the Court allowed the appeal and set aside the impugned orders. 

Conclusion 

• The Court in this case held that merely filing an application under Section 3 of the Act does not necessarily mean that the wife has exercised her option, and therefore, she remains entitled to maintenance under Section 125 of the CrPC 
• Thus, the Court in this case held that a Muslim wife could ask for maintenance post iddat period.