Under S. 125 of the Criminal Procedure Code, 1973 (S. 488 of the old code) a wife, whether Muslim or non-Muslim, is entitled to claim maintenance against the husband on the ground of the husband’s neglect or refusal to maintain her.
That provision lays down: If any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, of his legitimate or illegitimate minor child, whether married or unmarried unable to maintain itself, or his legitimate or illegitimate child, not being a married daughter, (a married minor daughter may be given maintenance allowance by the Magistrate, until she attains majority.
If the Magistrate is satisfied that the husband of the child is not possessed of sufficient means) who has attained majority, where such child is by reason of any physical or mental abnormality, or injury unable to maintain itself, a Magistrate of the first class may upon proof of such neglect or refusal, order such person to pay a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
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ADVERTISEMENTS:
Under the Criminal Procedure Code, the monthly allowance of maintenance cannot exceed Rs. 500.
Second proviso to S. 125(3), Criminal Procedure Code lays down that if the husband offers to maintain his wife on condition of her living with him, and she refuses to live with him, then the Magistrate may consider any ground of refusal stated by her, and may make an order for maintenance notwithstanding such offer, if he is satisfied that there is just ground for so doing.
The section also lays down that if a husband has contracted marriage with another woman or keeps a concubine, then it is a just ground for the wife’s refusal to live with him. It would amount to mental and legal cruelty if it is found that husband is impotent and is unable to discharge his marital obligations. It would amount to just cause.
ADVERTISEMENTS:
Sub-section (4) of S. 125 lays down that no wife is entitled to receive an allowance from her husband, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. If a wife, who has been allowed maintenance allowance under S. 125, is found living in adultery, or living separately from her husband without sufficient reason or by mutual consent, then the Magistrate will cancel the order.
The Muslim husband could always defeat wife’s claim of maintenance under S. 488 of the old Cr. P.C. by pronouncing divorce on her. If this happened, she could claim maintenance under the order of the Magistrate only till the expiry of the period of idda but not beyond.
Now S. 125 of the new Code defines “wife” as including a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In Bai Tahira v. Ali Hussain, Krishna Iyer, J., in most unequivocal terms observed that every divorcee, wife, Muslim or non-Muslims, otherwise eligible, was entitled to the benefit of maintenance allowance and the dissolution of the marriage under personal law makes no difference to this right.
Again in Fuzlunbi v. K. Khader Vali, Supreme Court reiterated Bai Tahira, and Krishna Iyer, J., said that whatever the facts of a particular case, the Code by enacting Sections 125 to 127 charges the court with the humane obligation of enforcing maintenance or its just equivalent to ill-used wives and cast away ex-wives, only if the woman has received voluntarily a sum, at the time of divorce, sufficient to keep her going according to the circumstances of the parties.
ADVERTISEMENTS:
He added, “Neither personal law nor other salvationary plea will hold against the policy of public law pervading Section 127(3)(d) as much as it does Section 125. So a farthing is no substitute for a fortune nor naive consent equivalent to intelligent acceptance”.
In Zohara Khatoon v. Md. Ibrahim, the Supreme Court said that “wife” in Section 125 and Section 127 includes a wife divorced by talak as well as a wife who obtains divorce under the Dissolution of Muslim Marriage Act, 1939.