For verification of this paper, please visit on http://www.socialresearchfoundation.com/anthology.php#8

Various case and studies has been reviewed for this paper,  which has been discussed throughout this paper.

Section 25 Permanent Alimony and Maintenance:

(1)       Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall[***] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2)      If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3)          If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock,¹ it may at the

instance of the other party vary, modify or rescind any such order in such manner as the court may deem just]."

By analyzing the provisions of section 24 & 25 of HMA, 1955 it provides the right to claim maintenance and expenses of litigation during pendency of matrimonial substantive reifies as mentioned in section 9 to 13 of the HMA 1955. After the disposal of the substantive relief by the competent court, either party is entitled to claim permanent alimony and maintenance. It is also relevant to mention here that legislature has made an amendment in section 24 by inserting a provision that the application for the payment of expenses of the proceeding and such monthly sum during the proceeding shall as far as possible, be disposed within in sixty days from the date of service of notice on wife or the Husband, as the case may be. The legislature has made an attempt to provide the speedy relief to the aggrieved party to profit his or her vagrancy which is analogous to the provisions of section 125 of the Code of Criminal Procedure,1973.

Whether section 24 is Bar to application for maintenance under section 125 of the Code of

Criminal Procedure, 1973:

Section 4 of the Hindu marriage Act, 1955 is not bar to application for maintenance under section 125 of the Cr.P.C. even if the proceedings under the former section are pending. A pre­existing order for maintenance under section 125 of Cr.P.C. does not oust the jurisdiction of the Court to allow interim maintenance under section 24 of the Act Wherein the proceedings under Section 13 of the Act, the wife claimed maintenance under section 24 but she had already received alum sum. In execution of an order under section 125 of the Cr.P.C. much larger than what was due and had undertaken not to claim any type of maintenance against the husband, in view of such undertaking she would be deemed to have precluded herself from claiming further and the claim under section 24 could not be entertained.¹ Relevant Considerations for the Grant of Permanent Alimony Under Family and Personal Laws:

Permanent alimony is to be granted taking into consideration the social status and the conduct of the parties. The way of living of the spouse and such other ancillary aspects. Where the wife was already paid certain amount of alimony pursuant to interim orders of the court, it has been held that the amount of alimony paid the wife under interim order of the court should be ignored since the wife was bound to spend the said amount for maintaining herself.²

Entitlement of Maintenance to The Muslim Wife

There is nothing in the Shariat Act, 1937 or section 5 of the Code of Criminal Procedure, 1973 which precludes the application of section 125 same in the case of destitute Muslim wife. It cannot also be forgotten that the establishment of the secular society is the aim and goal of the Indian Constitution therefore, in the field which is secular and non-religious the laws have to be common for all the citizen of India and that is what has been done by the section 125 of the Code of Criminal Procedure 1973.

The Muslim Personal law i.e., The Shariat Act, 1937 does not lay down any special role of criminal procedure but merely lays down certain norms or rules as regard to the applicability of Muslim Personal laws to Muslims. It cannot be disputed that the rights conferred by Shariat Act 1937 could be enforced by the parties apart from the provisions of the Code of Crb1inal Procedure hence, section 5 of the Code of Criminal Procedure 1973 has no application to su h case. If the provisions of Shariat_Act, 1937 on the personal laws are imposed in the provisions of the Code of Criminal Procedure,1973 dealing with maintenance for destitute wife than the very purpose of the legislation will be frustrated.

It is significant to note that a Muslim wife's right to maintenance is determined not only under personal law but even under the Code of Criminal Procedure, 1973. The claim made under this law is an independent statutory unaffected by her personal law.³

The final authority was the Kazi as many significant points like, the quantum of maintenance, on the circumstance under which a person was entitled to be maintained by others. The Indian Courts cannot be Channelized by the Kazi.⁴ Tyabji4rightly observed that "The details in the text about the quantum of maintenance, the rules for determining when a person must be considered necessities, and for fixing the standard of means, the possession of which imposes the obligation to provide maintenance, are hardly applicable to·our times and conditions".

The Supreme Court in Mohd. Ahmed v. Shah Bano begum ⁵ observed that section 125 imposed an individual obligation towards a society to maintain some of his close relations listed there in so as to prevent vagrancy and destitution. It was further observed by Honorable Justice Chandrachud that the provisions under section 125 ofCr.P.C. are measures that enacted a uniform law applicable to all persons belonging to any community, caste or religion.

Honorable Justice Krishna Iyer in Bai Tahira v. Ali Hussain Fissalli⁶ expressed that the kind of provision of section 125 has to be so read as to be effective delivery system of statutory objects sought to be renewed by the legislature and when the beneficiaries are all weaker sections like destitute women the Article 15 (3) of the constitution must be in the light of the meaning and transforming the value of every measure.

In Khursid Khan v. Hassna Bano⁷ it was contended before the court that the principle of Muslim law relating to 'Iddat' entitled the divorced wife to get maintenance only during the period of 'iddat' and provision of the code of criminal procedure are not relevant to determine the question of maintenance and respect to the parties who were governed by the Muslim personal laws. Rejecting this contention, the Bombay High Court observed that a provision like section 125 was enacted by Parliament for Muslim wives also as it was in regard to all other wives. The Parliament has this power under Article 15 of the Constitution of India. It has also been provided under Article 44 of the constitution which deals with Uniform Civil Code and Section 125 is applicable to all person irrespective of their religion, creed or caste, it is really a step towards uniformity of law for maintenance.

The Supreme Court in Mohd Ahmed Khan v. Shah Begum⁸ held that "it is a matter of regret that though Article 44 of Indian Constitution provide that the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India but there is no evidence of an official activity for framing a common civil code. A common civil code will help the cases of national integration by removing discriminating loyalties to law which have conflicting ideologies. Though there are difficulties in binding person of different faith and persuasions on a common platform but a binding has to be made if the constitution of Qdia is to have any meaning.

Under section 125 of Cr.P.C., 1973 the term wife includes a divorced wife, this enactment is applicable to masses in India irrespective of their caste and creed it may be noted that term 'divorced wife' includes also a Muslim wife who has obtained a decree for dissolution of marriage under the Dissolution of Marriage Act, 1939.⁹

Under Section 125 of the Cr.P.C., 1973 the divorced wife is entitled to be maintenance by her former husband beyond the period of "Iddat" provided she remains unmarried. However, a divorced wife's claim to maintenance is subject to section 3 of the Muslim Women (Protection of Right on Divorce) Act, 1986 which provides that the order of maintenance in favor of divorced wife shall be cancelled and such woman be entitled·to maintenance under section 125 of the Cr.P.C., 1973.

The "lddat" period means in the case of divorced woman- three menstrual courses after the date of divorce, if she is subject to menstruation in 3 months after her divorce, if she is subject to menstruation and if she is pregnant at time of her divorce, the period between the divorce and delivery of or the termination of her pregnancy whichever is earlier.

A divorced Muslim wife is entitled to maintenance under section 125 of Code of Criminal Procedure, 1973 so long as she does not remarry. This principle is established by the Supreme Court though various pragmatic judgments of which some are mentioned below:

Shabana Bano v. Imran Khan¹⁰

Danial Lati.fi v. Union of India¹¹ Iqbal Bano v. State of UP¹²

Summary of law propounded by the Five-Judge Constitution Bench of the Supreme Court in the case of Danial Latifi v. Union of India¹³. The law propounded in this case is as under.

The provisions of the Act do not offend Article 14, 15 and 21 of the Constitution of India Muslim husband liable to pay maintenance to his divorced wife even after the iddat period provided she has not re- married and is unable to maintain herself:

Divorced Muslim woman unable to maintain herself after the Iddat period can proceed under section 4 of the Muslim women (Protection of rights of Divorce) Act 1986 against her relatives or Wakaf board for maintenance such a scheme provided under the said Act is equally beneficial like one provided under section 125 of the Cr.P.C. The provisions the said Act depriving women from applicability of section 125 of the Cr.P.C. is not discriminatory or unconstitutional¹⁴.

Application of maintenance under Section 125 of the Code of Criminal Procedure by a divorced Muslim wife is maintainable till she does not marry irrespective of her application under section 5 of the Muslim Women (Protection of Rights on Divorce) Act 1986:

The Apex Court through its various judgments held that application for maintenance under section 125 of the Cr.P.C. is maintainable till the Muslim wife remarries irrespective of her application under section 5 of the Muslim Woman (Protection of Rights on Divorce) Act, 1986, some of the judgmertts are mentioned as follows:

a.     Shabana Bano v. Imran Khan¹⁵

b.     Iqbal Bano v. State of UP¹⁶

c.     Shamim Bano v. Asraf Khan¹⁷

It was further observed in the above judicial pronouncements that a divorced Muslim wife was entitled to maintenance under Section 125 Cr.P.C. even in post iddat period as long as she does not remarry.

Muslim women and her children are entitled to maintenance under section 125Cr.PC as Section 3 (1)(b) of the Muslim woman (Protection of Rights on Divorce) Act 1986 does not affect the right under Section 125 Cr.P.C. The benefit of the section 125 Cr. PC in available irrespective of religion and it would be unreasonable, unfair and inequitable to deny this benefit to the children only on the ground of their being born of Muslim parents.¹⁸

Wife and children of a Muslim husband having entered irregular marriage entitled to maintenance under section 125 of the Code of Criminal Procedure, 1973:

The bar of unlawful conjunction (Jamabain-Almahra main) renders a marriage irregular (Fasid) and not void (Batil). Consequently, under the Hanafi Law as far as Muslims in India are concerned, an irregular marriage continues to subsist till terminated in accordance with law and the wife and children of such marriage would be entitled to maintenance under the provision of section 125 of Cr.P.C.¹⁹

1. Devinder Kumar Singla,Judicial Separation under Hindu Law, 123 (1992) Deep & Deep Publications, New Delhi.
2. Vishwanath Agarwal v. Sarla Vishwanath Agarwal (2012) SCC 288.
3. K.R Khan v. Humtaz AIR 1976 SC 891
4. Faiz Hassan Badrudin Tyabji, Muslim Law: The Personal Law of Muslims in India and Pakistan,254 (1968) N.M. Tripathi, Mumbai.
5. AIR 1985 SC 945
6. AIR 1979 SC 362, 363
7. 1976 Cr.LJ 1584, Bombay
8. AIR 1985 (945)
9. Zohar Khatoon v. Mohd. Ibrahim AIR 1952 SC 130
10. (2012) 1 SCC 666
11. (2001) 7 SCC 740
12. (2007) 6 SCC 785
13. (2001) 7 SCC 740
14. Danial Latifi v. Union of India AIR (2001) SC 3958 (Five Judge Bench)
15. (2010) 1 SCC 666
16. (2007) 1 SCC 666
17. SLP (Cri. NO. 4377/2012)
18. Shamin Bano v. Asraf Khan SLP Criminal No. 4377 (2012) Noor Sabha Khatoon v. Mohd. Quasim(1997) 6 SCC 233
19. Chand Patel v. Bismillah Begum(2008) 4 SCC 7740