Maintenance of Wife by Muslim Husband under Section 125 Code of Criminal Procedure 1973

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.

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.

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.

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