This Case is all about a married couple who ended up getting divorced. After
their divorce, the wife left the house to go live serperately. When she left the
house, she also took her son along with herself.
4 months after the divorce, she realised it was pretty tough to live alone and
also take care of her minor son, so she filed an application in the Judicial
Magistrate claiming maintenance from the said husband with a sum total amount of
2000 rupees per month where 1500 rupees goes to the wife and 500 rupees goes to
However since this was an unfair treatment, the husband filed a petition against
this order. The wife and the husband parted ways because it was natural it was
mentioned under the Muslim Law. The said case was taken to the Gujarat High
court on 8th March 2013 to come to a conclusion.
This is a classic divorce and maintenance case. The only reason the husband
filed against the application order of his own wife was because the divorce had
already happened and the child was during wedlock and both of them parted ways
Facts Of The Case:
The petitioner issued a suitable writ to pass an order for a criminal
miscellaneous application number 90 of 2010 by the honourable court of judicial
Magistrate First Class, Upleta (District Rajkot) as stated in the order. It was
later revoked and overturned.
Then the petitioner was aggrieved by the order that was passed by the judicial
Magistrate under Section 125 of code of Criminal procedure.
The petitioner goes by the name Farhan Haji Gafar Gudda and the respondent goes
by the name Rijwanaben Usmanbhai Patel
In this case that is Farhan Haji Gafar Gudda vs Rijwanaben Usmanbhai Patel
the respondent is the divorced wife of the petitioner. The divorce between them
came to a conclusion in November 2009 and since then the wife that is the
respondent stays separately with her minor son also called respondent no. 2 who
was born from the wedlock with the petitioner.
Wedlock means it is the state of being married : marriage, matrimony.
Out of wedlock means with the natural parents not legally married to each other.
Respondent no. 2 stays with his mother separately because of the divorce.
The petitioner pointed out that his marriage was solemnised according to Muslim
Law and their divorce should also be in accordance with Muslim Law.
The wife is not able to maintain herself and her minor son around 4 months after
their divorce, she filed a respective application that seeks maintenance for
herself as well as her son under Section 125 of the code of criminal procedure.
The learned Magistrate has allowed for maintenance for both the wife as well as
her son that is respondent no.1 and respondent no.2.
The code has awarded a sum total of about 2000 rupees a month within which 1500
rupees goes to respondent no.1 that is the wife and 500 rupees goes to the son
that is respondent no.2. The divorced husband felt this application order that
was passed was super unfair and hence this petition.
This order was challenged on the most single and solitary ground that in view of
the provisions under the Muslim Women Protection Of Rights on Divorce Act,1986
so Section 125 of the code of criminal Procedure cannot be invoked and applied
in case of a divorced Muslim woman and any order directing payment of
maintenance to a Muslim Woman who is divorced by her husband cannot be passed
under Section 125 of the code of criminal procedure.
After the divorce, the application filed in the judicial Magistrate regarding
the maintenance came to be registered as criminal Miscellaneous Application
No.90 of 2010
This said application was finalised in September 2011
A minor means an individual who is under the age of full legal responsibility
which perfectly describes respondent no. 2 that is the wife's son
A wife means a married woman considered in relation to her spouse
The order of the maintenance of wives, children and parents goes:
- His wife unable to maintain herself
- His legitimate or illegitimate minor child whether married or not
- His legitimate or illegitimate minor child who has attained majority
where such child is by reason of any physical or mental abnormality or
injury unable to maintain itself
- Father or mother unable to maintain himself or herself
The judicial Magistrate may order the the father of the unit female child to
make such an allowance for maintenance until she attains her majority
Section 125 of the code of criminal procedure:
- Whether the petitioner is liable to pay an maintenance amount to the wife?
- Whether the petitioner is also liable to pay an maintenance amount to
his son as well during wedlock?
- Whether the maintenance amount is confined to the Iddat period?
(The iddat period is the period in which a woman must observe after the death
of her husband or after a divorce, during which she may not marry another man)
- Whether the case is civil in nature?
Order for maintenance of wives,
children and parents.
Section 3 (1) (a) of the special marriage Act of 1954:
For the purposes of this
Act, the State Government may, by notification in the Official Gazette, appoint
one or more Marriage Officers for the whole or any part of the State.
Section 3 of Divorce act of 1869
- Neither party has a spouse living
- neither party:
- Is incapable of giving a valid consent to it in consequence of unsoundness
of mind; or
- Though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and
the procreation of children
- Has been subject to recurrent attacks of insanity
- The male has completed the age of twenty-one years and the female the
age of eighteen years
- The parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits
of a marriage between them, such marriage may be solemnised, notwithstanding that they are
within the degrees of prohibited relationship
Of whose jurisdiction under this Act the
marriage was solemnised or the husband and wife reside or last resided together
Section 4 of Divorce Act of 1869
Matrimonial jurisdiction of High Courts to be
exercised subject to Act. Exception.- The jurisdiction now exercised by the High
Courts in respect of divorce and in all other causes, suits and matters
matrimonial, shall be exercised by such Courts and by the District Courts
subject to the provisions in this Act contained, and not otherwise
This case deals with divorce and maintenance as a whole.
When the divorce took place, the wife filed an application against the husband
trying to claim 2000 rupees every month for which 1500 goes to her and 500 goes
These textbook assertions are insufficient to support the idea that a Muslim
husband is not required to support the maintenance of his divorced wife who is
unable to support herself. To ascertain the extent of the husband's obligation
to support an impoverished wife whom he has divorced, both in terms of quantum
and induration, one must take into account the entirety of the Muslim Personal
Law. As a sign of respect for his wife, the husband is required by that rule to
give the wife Mahr.
It is true that he may give his wife any amount as a dower, but it cannot be
less than 10 Dir hams, which is equal to three or four Rupees (Mulla s Mahomedan
Law, 18th Edition, para 286, page 308). Mahr is a sign of respect for the wife,
but one must take into account the realities of life. The Mahr settlement is
typically anticipated to cover the wife's regular expenses both during and after
the marriage. However, these Muslim Personal Law requirements do not take into
account situations where the woman is unable to support herself after the
We believe that expanding the application of the remarks extracted above to
situations in which a divorced woman is unable to support herself is not only
erroneous but also unjust. We believe that the circumstances in which there is
no risk of vagrancy or destitution due to the divorced wife's indigence should
be excluded from the application of such legal statements. The broad and general
question of whether a husband is required to support his wife, including a
divorced wife, in all situations and under all circumstances is not the subject
of this discussion. That isn't what Section 125 is about.
That Section deals with situations where a person with ample resources neglects
or refuses to provide for others, including his wife who is unable to provide
for herself. It would be incorrect to hold that the Muslim husband, according to
his personal law, is not at all obligated to provide maintenance, beyond the
period of iddat, to his divorced wife who is unable to maintain herself.
This is because the Muslim Personal Law limits the husband's liability to
provide for the maintenance of the divorced wife to the period of iddat and
because she is unable to support herself, the appellant's claim that his
obligation to pay for his divorced wife's maintenance is only obligated during
the iddat term in accordance with Muslim Personal Law must be denied. The actual
situation is that, if the divorced wife is capable of supporting herself, the
husband's obligation to do so ends after the iddat term expires. She is allowed
to use Section 125 of the Code if she is unable to support herself.
The conclusion of this discussion is that, with regard to the obligation of the
Muslim husband to give support for a divorced wife who is unable to maintain
herself, there is no conflict between the provisions of Section 125 and those of
the Muslim Personal Law.
In Moh.Ahmed Khan v. Shah Bano Begam
, the Supreme Court ruled that if the
divorced lady can support herself, the husband's liability ends with the end of
the iddat term. However, if she is unable to do so, she is allowed to use
Section 125 of the Code of Criminal Procedure, 1973.
The aforementioned ruling has generated significant debate regarding the Muslim
husband's duty to support the divorcée wife. The Muslim Women (Protection of
Rights on Divorce) Bill was submitted in the Parliament in an attempt to weaken
the ruling made in the aforementioned case.
The Supreme Court ruled in Mohd. Ahmed Khan v. Shah Bano Begum and Others
(AIR 1985 SC 945) that, despite the Muslim law's limitation of the husband's
obligation to pay for the divorced wife's maintenance to the period of iddat,
the situation envisioned by Section 125 of the Code of Criminal Procedure is not
contemplated or permitted under the Muslim law. The Court determined that it
would be improper and unfair to apply the aforementioned Islamic law norm in
situations when the divorced wife is unable to support herself.
The Court therefore came to the judgement that if the divorced woman can support
herself, the husband's liability ends when the term of iddat expires, but if she
is unable to do so after the period of iddat, she is entitled to use Section 125
of the Code of Criminal Procedure, 1973. (2 of 1974).
In addition to mahr and maintenance for the iddat period, Section 3(1)(a) of the
Act incorporates mata as a right of the divorced Muslim woman. A reasonable and
fair provision, as defined in Section 3(3) of the Act, would be with reference
to the needs of the divorced woman, the means of the husband, and the standard
of living the woman experienced during the marriage. There is no reason why such
a provision should not be made.
First, it is clear from the use of two different verbs in Section 3(1)(a) of the
Act that a fair and reasonable provision is to be made while maintenance is to
be paid; second, Section 4 of the Act, which gives the magistrate the authority
to order the payment of maintenance to the divorced woman against various of her
relatives, makes no mention of provision. Undoubtedly, the right to a fair and
reasonable provision in her favour is a right that can only be enforced against
the woman's ex-husband and is in addition to the maintenance payments he is
required to make.
Thirdly, although Yusuf Ali's translation of the Holy Quran's word mata as
maintenance may be inaccurate and other translations used the word provision,
this Court disregarded this feature in the Shah Banos case by concluding that it
was a distinction without a difference. There could be no pretence that the
husband in the Shah Banos case had given his divorced wife any kind of mata,
whether it was maintenance or sustenance.
The Gujurat High Court held that A Muslim husband is required to provide for the
divorced wife's future in a reasonable and equitable manner, which certainly
includes paying for her maintenance as well. According to Section 3(1)(a) of the
Act, such a reasonable and fair arrangement that extends beyond the iddat time
must be made by the husband within the iddat period.
The obligation of a Muslim husband to support his divorced wife that results
from Section 3(1)(a) of the Act is not limited to the iddat period.
A divorced Muslim woman who has not remarried and is unable to support herself
after the iddat period may take legal action against her family, including her
children and parents, who are obligated to support her in proportion to the
assets they will receive upon her death under Islamic law. The Magistrate may
order the State Wakf Board established by the Act to provide maintenance if any
of the relatives are unable to do so.
Civil actions are brought under Section 125 of the Criminal Procedure Code.
Given the advantageous nature of the legislation, the Court is free to treat the
case as a petition under the Act even if he learns that there was a divorced
lady involved. The same court hears cases brought under Section 125 of the
Criminal Procedure Code and claims made under the Act. Hence all the issues have
been resolved respectively.