ABDULLA MIYA Vs. NOORUNISHA

JUDGEMENT

(1.) A common question that arises in this set of petitions is, whether a divorced muslim woman can claim maintenance under Section 125 of the Code of Criminal Procedure The Courts below have taken a consistent view that a divorced muslim woman can claim maintenance under Section 125 Cr.P.C. Hence, these petitions.

(2.) Learned Advocate Mr.Shaikh for the petitioners submitted that when there is a special enactment i.e. The Muslim Women (Protection of Rights on Divorce) Act, 1986 ["1986 Act" for short] providing for maintenance to a divorced muslim woman, general law under Section 125 Cr.P.C would not apply and, therefore, the Courts below have erred in upholding the right of divorced muslim women to claim maintenance under Section 125 Cr.P.C.

(3.) In this context, reference may be made to a decision of this Court in the case of Arab Ahmedbin Abdulla V/s. Arab Bail Mohmuna Saiyadbhai & Anr, 1988 1 GLR 452, where this Court held that Muslim Women (Protection of Rights on Divorce) Act, 1986, does not say that the husband is liable to pay maintenance to the divorced wife only during the period of 'Iddat'. The liability lasts so long as the woman does not remarry and so long as she is in need of maintenance. The Court observed that the Act does not purport to nullify the Supreme Court decision in Shah Bano s case, 1985 AIR(SC) 945 . Ultimately, the Court took a view that there is no provision in 1986 Act, which nullifies the orders passed by the Magistrate under Sections 125 & 127 Cr.P.C ordering the husband to pay maintenance to a divorced muslim woman or takes away the vested rights which are crystalized by the order passed under section 125 or section 127 Cr.P.C.