Section 125 does not aim to benefit those belonging to any particular religion, its use by Muslim wives was curtailed by the Muslim Women (Protection of Rights on Divorce) Act, 1986.
However, according to a report in the Indian Express, the High Court of Bombay at Aurangabad has said that a Muslim woman is entitled to maintenance under Section 125 of the Code of Criminal Procedure if the Talaq is not valid. In this case, the husband’s own version did not reveal a credible reason for divorce and in addition to that, there was no attempt at reconciliation prior to the divorce as is required under Supreme Court guidelines.
Section 125. Maintenance
If a person who has sufficient means neglects or refuses to maintain:
his wife, unable to maintain herself, whether or not he is divorced from her or
his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(If the child is a married daughter, maintenance is to be paid till she attains majority if her husband does not possess sufficient means.)
his legitimate or illegitimate adult child who cannot maintain itself because of any physical or mental abnormality or injury
(This does not include a married daughter.)
his father or mother, unable to maintain himself or herself,
he can be ordered to pay maintenance to those persons by the Family Court in places where a Family Court has been established or by a JMFC in other places if the neglect or refusal is proved.
The Court may order him to pay a monthly allowance as maintenance of his wife or such child, father or mother as it thinks fit to the person.
The allowance is payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
If any person so ordered fails without sufficient cause to comply with the order, the Court may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. However, no warrant shall be issued for the recovery of any amount due under this section unless application is made to the Court to levy such amount within a period of one year from the date on which it became due.
If such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Court may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
A wife is not entitled to receive an allowance from her husband if she is living in adultery, or if, she refuses to live with her husband without any sufficient reason, or if they are living separately by mutual consent.
On proof that any wife in whose favour an order has been made is living in adultery, or that she refuses to live with her husband without sufficient reason, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
Section 126: Procedure
Proceedings under section 125 may be taken against any person in any district:
where he is, or
where he or his wife, resides, or
where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
All evidence in such proceedings is taken in the presence of the person against whom an order for payment of maintenance is to be made, or, when his personal attendance is dispensed with, in the presence of his pleader. It is recorded in the manner prescribed for summons-cases. However, if the Court is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, it may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as it thinks is just and proper.
The Court in dealing with applications under section 125 has the power to make such order as to costs as may be just.
Section 127. Alteration in allowance
On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Court may make such alteration in the allowance he thinks fit.
Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Court shall, if it is satisfied that:
the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order:
in the case where, such sum was paid before such order, from the date on Which such order was made,
in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date of the divorce.
At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court takes into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.
Section 128: Enforcement of order of maintenance
A copy of the order of maintenance is given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid.
The order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.