Bombay High Court
TASNEEM JAVED SHAIKH @ TASNEEM MOHIUDDIN SAYYEDversusSHAIKH JAVED ABDUL LATIF AND ANR
- Decided
- Disposal
- Disposed Off
- Bench
- MADHAV JAMDAR
Holding
The Explanation to Section 125 includes a divorced woman who has not remarried, making her eligible for maintenance; therefore, the Family Court's order was illegal and was quashed.
Summary
The applicant, a divorced wife, filed a criminal revision challenging the Family Court's order that denied her maintenance under Section 125 of the Code of Criminal Procedure, 1973, on the ground that she was no longer a wife after a triple talaq divorce. The High Court examined the Explanation (b) to Section 125, which expressly includes a woman who has been divorced and not remarried within the definition of "wife". It also noted the parallel provision in Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Finding that the Family Court ignored this Explanation, the Court held the order illegal, quashed it, and directed the husband to pay Rs.25,000 per month as maintenance and shelter charges, with arrears payable by specified dates. No costs were awarded.
Issues considered
- Whether Section 125 of the Code of Criminal Procedure applies to a woman divorced by triple talaq who has not remarried.
- Whether the Explanation (b) to Section 125, and the corresponding provision in the Bharatiya Nagarik Suraksha Sanhita, render the Family Court's denial of maintenance illegal.
- Whether the impugned order of the Family Court should be set aside and maintenance directed.
Legislation cited
Subjects
- Section 125
- maintenance
- divorce
- triple talaq
- criminal revision
- family court
- explanation to statute
- wife definition
- arrears
Judgment
18-REVN-371-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 371 OF 2024
Digitally
Tasneem Javed Shaikh @
signed by
SHRADDHA
SHRADDHA KAMLESH
Tasneem Mohiuddin Sayyed …Applicant
KAMLESH TALEKAR
TALEKAR Date:
2026.02.09
22:14:17
Versus
+0530
1) Shaikh Javed Abdul Latif
2) The State of Maharashtra …Respondents
Mr.Vikas Shivarkar, for Applicant.
Mrs. R.V. Newton, APP for Respondent No. 2-State.
CORAM : MADHAV J. JAMDAR, J.
Date : 6th February, 2026
PC :
1. Heard Mr. Shivarkar, Learned Counsel appearing for the
Applicant and Mrs. Newton, Learned APP for Respondent No.2-State.
Though served, none appears for Respondent No. 1.
2. By the present Criminal Revision Application, the challenge is
to the legality and validity of the order dated 18 th May, 2024 passed by
the Learned Judge, Family Court No. 7, Pune in P.E. No. 49 of 2020
(“Impugned Order”). The said Petition was filed under Section 125 of
the Code of Criminal Procedure, 1973 (Code) seeking maintenance of
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Rs. 10,000/- per month from the Respondent-Husband. The Learned
Judge of the Family Court rejected the said application on the ground
that the Respondent, i.e. husband has pronounced divorce as per Islamic
rights and by uttering the words for three times, he had divorced the
Petitioner-Wife Tasneem. Thus, the Learned Family Court has held that
since the Petitioner is not the wife of the Respondent, therefore, Section
125 of the Code is not attracted.
3. In view of the above reasoning given by the Learned Judge of
the Family Court, it is necessary to set out relevant part of Section 125 of
the Code, which reads as under :
125 Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses
to maintain--
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is, by
reason of any physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself,
a Magistrate of the first class may, upon proof of such neglect
or refusal, order such person to make a monthly allowance
for the maintenance of his wife or such child, father or
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mother, at such monthly rate * * * as such Magistrate thinks
fit and to pay the same to such person as the Magistrate may
from time to time direct:
...
Explanation.--For the purposes of this Chapter,
(a) "minor" means a person who, under the provisions of the
Indian Majority Act, 1875 (9 of 1875) is deemed not to have
attained his majority;
(b) "wife" includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.
(2) Any such allowance for the maintenance or interim
maintenance and expenses of proceeding shall be payable
from the date of the order, or, if so ordered, from the date of
the application for maintenance or interim maintenance and
expenses of proceeding, as the case may be.
(Emphasis Supplied)
4. Explanation (b) to Section 125 specifically provides that
"wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried. There is nothing on
record to indicate that the Applicant has remarried and she is able to
maintain herself.
5. Even Section 144 of the Bharatiya Nagarik Suraksha Sanhita,
2023, which is the corresponding Section to Section 125 of the Code, in
the Explanation provides that for the purposes of Chapter 10 the "wife"
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includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried. Thus, it is very clear that the
Impugned Order dated 18th May, 2024 has been passed without noticing
the Explanation to Section 125 of the Code, and therefore, the same is
illegal.
6. Accordingly, the Impugned Order dated 18th May, 2024 is
quashed and set aside.
7. In the said P.E. No. 49 of 2020, the Petitioner has sought
Rs.25,000/- per month towards monthly maintenance and Rs. 10,000/-
per month as Rental Charges towards Shelter. In the Petition being P.E.
No. 49 of 2020, it is stated that the Respondent-Husband is a Central
Government employee and working in Defence Department and earning
approximately Rs.1,00,000/- per month as salary and also is entitled to
get various facilities.
8. Thus, in the facts and circumstances, the Respondent No. 1 is
directed to pay Rs.25,000/- per month to the Applicant towards
maintenance including Rental Charges towards shelter from the date of
filing Application being P.E. No. 49 of 2020. The Respondent No. 1 shall
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pay the said amount per month, on or before 15 th of each month. First
such payment shall be made with effect from 1 st February, 2026 and
such payment is to be made on or before 15 th February, 2026. The
arrears to be paid on or before 30th April, 2026.
9. The Criminal Revision Application is disposed of in the above
terms with no order as to costs.
[ MADHAV J. JAMDAR, J.]
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