Section 125 CrPC Applies To Divorced Muslim Woman, Maintenance Cannot Be Denied Under Domestic Violence Act: Bombay HC

The Bombay High Court, Nagpur Bench has held that the provisions of Section 125 of the Criminal Procedure Code (Cr.PC.) are applicable to the divorced Muslim woman and hence the maintenance cannot be denied to her in the proceeding initiated under Section 12 of the Domestic Violence Act, 2005 (DV Act).

A Single Bench of Justice G.A. Sanap observed, “In the case of Shababa Bano Vs. Imran Khan (supra) the Hon’ble Supreme Court has held that even if a Muslim women has been divorced, she would be entitled to claim maintenance from her divorced husband, as long as she does not re-marry. It is held that provisions of Section 125 of the Cr.P.C. being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim woman. In this case, even if it is assumed for the sake of argument that the non-applicant has given divorce (Talaq) to the applicant, she cannot be denied maintenance in the proceeding initiated under Section 12 of the D.V. Act.”

The Bench said that once an act of domestic violence is committed, the subsequent decree of divorce will not absolve the liability of the husband from the offence committed or deny the benefit to which the aggrieved person is entitled under the DV Act, including monetary relief under Section 20 of the said Act.

Advocate R.N. Sen appeared on behalf of the applicant/husband while Advocate Mohtesim Badar appeared on behalf of the non-applicant/wife.

Brief Facts -

A criminal revision application was filed by the husband challenging the judgment passed by the Sessions Judge whereby an appeal filed by him was dismissed and the one filed by his wife was allowed leading to enhancement of the amount of maintenance quantified by the Magistrate and awarded the same at the rate of Rs. 16,000/- and Rs. 2,500/- per month to wife and minor son respectively. In the year 2006, when the wife went to Saudi Arabia with her husband, a dispute arose between her relatives and her husband’s relatives residing in the same building due to which her husband started ill-treating her.

Thereafter, both returned to India, and the wife alleged that she was pressurized to file a complaint against her relatives on the refusal of which the husband’s relatives tried to kill her. Ultimately, she lodged a complaint against her husband and his relatives and demanded maintenance from him. The husband, at last, divorced her by communicating the same via registered post. Being aggrieved by the grant of maintenance by the Magistrate and then enhancement of the same by the Sessions Judge, the husband, therefore, approached the High Court.

The High Court in view of the facts and circumstances of the case noted, “On going through the record and proceeding, I am satisfied that the decisions rendered by the two courts below cannot be said to be either perverse, arbitrary or capricious and as such does not warrant interference in the exercise of revisional jurisdiction. … the applicant would be squarely covered by definition of ‘aggrieved person’ as well as by the definition of ‘domestic relationship’. Therefore, the submission made on behalf of the non-applicant that she would not be entitled to get any relief under the D.V. Act cannot be sustained.”

The Court further noted that while quantifying the monthly maintenance payable to the wife, the husband’s monthly salary of Rs. 64,500/- was taken into consideration which was mentioned in the affidavit filed by his father.

“… the grant of maintenance to the extent of 25% of the husband’s net salary would be just and proper. In my view, on this count also there is no error or perversity on the part of the learned Sessions Judge while accepting the claim of the applicant. … It is to be noted that the non-applicant is Chemical Engineer. He is working in Saudi Arabia. He has suppressed from Court his actual income. The applicant cohabited with the non-applicant in Saudi Arabia for almost 11 years”, said the Court.

The Court observed that the wife is entitled to lead the life and maintain the lifestyle and standard that she was accustomed to while staying with the husband and has the right to lead a life befitting the lifestyle and standard of the husband. “On any ground the husband cannot be allowed to question the wife on such count”, it said.

“… in my view, there is no substance in the revision. The submissions advanced by the learned Advocate for the non-applicant on all counts cannot be accepted. … The Criminal Revision is therefore, devoid of merits”, concluded the Court.

Accordingly, the Court dismissed the revision plea.

Cause Title- Ahsanullah @ Javed Khan v. Shahana Parvin @ Brijis

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