cpc

divorce


Esteemed Members,

With respect n regards dat i am pleading a case on behalf of a male person who had divorced her wife by way of a proper document under Muslim Personal Law.But her divorced wife is claiming maintainance even though she had been divorced.So i need some recent Supreme court juggements of 2013 (citation)under Muslim Personal Law so that her application will be dismissed as she had already been divorced.

Warm Regards

Advocate Mosin.

 
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Practicing Advocate

A muslim wife entitled to maintainance even after divorce u/s. 125 crpc as per a supreme court judgment.

 
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Advocate

 

As per Muslim Women Protection of rights on Divorce Act, 1986 the Muslim women are eligible for maintenance only during the period of Iddat.  As per Section 5 of the said Act -  5. Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974 If on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

 

In other words, Sections 125 to 128 of Cr.PC are applicable only if both the litigants agree during first hearing that the case be litigated under the provisions of Cr.PC. 125 to 128.  If anyone of them do not agree to litigate under these provisions, the proceedings under Cr.PC. stand vitiated by operation of Section 5 of this Act. Every application under Sec. 125 of the Code made before or after divorce would be governed by 1986 Act. Under Sec. 4 of this Act, a  divorced woman can obtain maintenance for post iddat period from her children, parents. other relatives and State Wakf Board, if there is any, if she avails this remedy.

 

 
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Advocate

Meaning of Iddat:

 

 

In Islam, iddah or iddat (Arabic: العدة‎; period of waiting) is the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man.[1] The period, four months and ten days after the death of a spouse, is calculated on the number of menses that a woman has. Iddah was intended to ensure that the male parent of any offspring produced after the cessation of a nikah would be known.

Qur'an prohibits widows to engage themselves for four lunar months and ten days after the death of their husbands.[2] Islamic scholars consider this directive to be a balance between mourning of husband's death and protecting the widow from criticism that she might be subjected to from re-marrying too quickly after her husband’s death.[3] This is also to ascertain whether a woman is pregnant or not, since four and a half months is half the length of a normal pregnancy.[4] With the advent of genetic testing to establish paternity, this tradition is expected to be revised in due course, once Islamic scholars are able to review and amend it.

 

 
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