Full Judgment Text
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PETITIONER:
NOOR SABA KHATOON
Vs.
RESPONDENT:
MOHD. QUASIM
DATE OF JUDGMENT: 29/07/1997
BENCH:
A. S. ANAND, K. VENKATASWAMI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
DR. ANAND. J,
A short but interesting question involved in this
appeal, by Special Leave, is whether the children of muslim
parents are entitled to grant of maintenance under Section
125, Cr. P. C. for the period till they attain majority or
are able to maintain themselves whichever date is earlier or
in the case of female children till they get married or is
their right restrict to the grant of maintenance only for a
period of two years prescribed under Section 3(1)(b) of the
Muslim Women (protection of Rights on Divorce) Act, 1986
notwithstanding Section 125 Cr. P. C.
The appellant married the respondent according to
muslim rites on 27.10.1980. During the wedlock, three
children were born - two daughters and a son. On certain
disputes arising between the parties, the respondent
allegedly turned the appellant out of the matrimonial home
alongwith the three children then aged 6 years, 3 years and
1 1/2 years and also refused and neglected to maintain her
and the children thereafter. After turning the appellant out
of the matrimonial home, the respondent took a second wife,
Shahnawaz Begum, Claiming that the appellant has no means to
maintain herself and the children and that the respondent
had both agricultural land and was carrying on business in
electrical appliances as well and had sufficient income and
means to maintain them, she filed an application under
Section 125 Cr. P. C. in the Court of Shri A. K. Jha,
Judicial Magistrate, First Class, Gopalganj, on 13.2.1992.
She claimed a sum of Rs. 400/- per month for herself and Rs.
300/- per month as maintenance for each of the three
children. The application was contested, though it was only
the appellant, who adduced evidence at the trial and the
respondent/husband did not lead any evidence. The Trial
Court found that the respondent had failed and neglected to
maintain his wife and children and that they had
no source of income or means to maintain themselves and
accordingly held that they were entitled to the grant of
maintenance from the respondent. By its order dated
19.1.1993, the Trial Court directed the respondent to pay
maintenance to the appellant at the rate of Rs. 200/- per
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month for herself and at the rate of Rs. 150/- per month for
each of the three minor children, till they attain the age
of majority. While the matter rested thus, the respondent
divorced the appellant and thereafter filed an application
in the Trial Court seeking modification of the order dated
19.1.1993, in view of the provisions of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (hereinafter
referred to as the 1986 Act). By an order dated 27.7.1993,
the Trial Court modified the order dated 19.1.1993, insofar
as the grant of maintenance to the appellant is concerned
while maintaining the order granting maintenance to each of
the three minor children. Insofar as the appellant is
concerned, the Trial Court held that in view of the
provisions of the 1986 Act the appellant-wife after her
divorce was entitled to maintenance only for a period of
three months i.e. for the period of Iddat. The Trial Court
further found that the right to maintenance under Section
125 Cr. P. C. insofar as the children are concerned was not
affected by the 1986 Act in any manner. The order dated
27.7.1993 was challenged by the respondent through a
Revision Petition in the Court of 2nd Additional Judge,
Gopalganj. On 16.7.1994, the revisional court dismissed the
revision petition holding that the 1986 Act does not over-
ride the provisions of Section 125 Cr. P. C. for grant of
maintenance to the minor children and that Section 3(1)(b)
of the 1986 Act also entitles a divorced woman to claim
reasonable and fair maintenance from her husband for
maintaining the children born to her before or after her
divorce from her former husband for a period of two years
from the respective dates of birth of the children and that
the said provision did not affect the right to maintenance
of the minor children granted by Section 125 Cr. P. C. The
respondent, thereupon, filed a Criminal Misc. Petition under
Section 482 Cr. P. C. in the High Court challenging the
correctness of that part of the order of the revisional
court which upheld the right to maintenance of the three
minor children under Section 125 Cr. P. C. at the rate of
Rs. 150/- per month per child. A learned single Judge of the
High Court accepted the plea of the respondent that vide
Section 3(1)(b) of the 1986 Act, a divorced muslim woman is
entitled to claim maintenance from her previous husband for
her minor children only for a period of two years from the
date of birth of the concerned child and that the minor
children were not entitled to claim maintenance under
Section 125 Cr. P. C. after the coming into force of the
1986 Act. The High Court noticed that the tow older children
were aged 6 years and 3 years when the application for
maintenance was filed on their behalf by their mother, and
thus "had completed two years prior to filling of the
petition for grant of maintenance", and as such those two
children were held not entitled to the grant of any
maintenance under Section 125 Cr. P. C. and that the third
child, who was only 1 1/2 years of age on 19.1.1993, was
entitled to receive maintenance till she attained the age of
two years i.e. till 19.7.1993 from the date of filing of the
application i.e. 13.2.1992. With the said modification, the
miscellaneous application of the respondent-husband was
partly allowed. By special leave to appeal the appellant has
come up to this court.
The facts are not in dispute. The appellant had filed a
petition for grant of maintenance under Section 125 Cr. P.
C. for herself as well as on behalf of the three children
born during the wedlock, who were living with her, since the
respondent had refused and neglected to maintain them. On
the date of the application filed under Section 125 Cr. P.
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C. i.e. 13.2.1992, the children were aged 6 years, 3 years
and 1 1/2 years. After the Trial Court granted the petition
under Section 125 Cr. P. C. in favour of the appellant and
the three minor children, the respondent divorced the
appellant and filed an application seeking modification of
the order of maintenance in view of the provisions of the
1986 Act. The trial court modified its order qua the
appellant, restricting the grant of maintenance to the
period of Iddat but maintained its earlier order insofar as
the children are concerned. While the revisional court
declined to interfere with the order of the Trial Court, the
High Court based itself on Section 3(1)(b) of the 1986 Act
to hold that the grant of maintenance to the children of
divorced muslim parents, living with their mother, was
restricted to the period prescribed under the said section
notwithstanding the provisions of Section 125 Cr. P. C..
Does Section 3(1)(b) of the 1986 Act is any way affect
the rights of the minor children of divorced muslim parents
to the grant of maintenance under Section 125 Cr. P. C. is
thus the moot question?
The preamble to the 1986 Act reads:
"An Act to protect the rights of
Muslim women who have been divorced
by, or have obtained divorce from
their husbands and to provide for
matters connected therewith or
incidental thereto."
The Act, thus, aims to protect the rights of Muslim
Women who have been divorced. The 1986 Act was enacted as a
sequel to the judgment in Mohd. Ahmed Khan vs. shah Bano
Begum, AIR 1985 SC 945. The question of maintenance of
children was not involved in the controversy arising out of
the judgment in the case of Shah Bano Begum (supra). The Act
was not enacted to regulate the obligations of a muslim
father to maintain his minor children unable to maintain
themselves which continued to be governed with Section 125
Cr. P. C.. This position clearly emerges from a perusal of
the relevant provisions of the 1986 Act.
Section 3 of the 1986 Act to the extent relevant for
this case reads:
Sec. 3 Mahr or other
properties of Muslim woman to be
given to her at the time of
divorce.- (1) Notwithstanding
anything contained in any other law
for the time being in force, a
divorced woman shall be entitled
to-
(a) a reasonable and fair
provision and maintenance to be
made and paid to her within the
iddat period her former husband;
(b) where she herself
maintains the children born to her
before or after her divorce, a
reasonable and fair provision and
maintenance to be made and paid by
her former husband for a period of
two ears from the respective dated
of birth of such children;
(c) an amount equal to the sum
of mahr or dower agreed to be paid
to her at her time of her marriage
or at any time thereafter according
to Muslim law; and
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(d) all the properties given
to her before or at the time of
marriage or after the marriage by
her relatives or friends or the
husband or any relatives of the
husband or his friends.
...................................
.............."
From a plain reading of the above Section it is
manifest that it deals with "Mahr" or other properties of a
muslim woman to be given to her at the time of divorce. It
lays down that a reasonable and fair provision has to be
made for payment of maintenance to her during the period of
Iddat by her former husband. Clause (b) of Section 3(1)
(supra) provides for grant of additional maintenance to her
for the fosterage period of two years from the date of birth
of the child of marriage for maintaining that child during
the fosterage. Maintenance for the prescribed period
referred to in Clause (b) of Section 3(1) is granted on the
claim or the divorced mother on her own behalf for
maintaining the infant/infants for a period of tow years
from the date of the birth of the child concerned who is/are
living with her and presumably is aimed at providing some
extra amount to the mother for her nourishment for nursing
or taking care of the infant/infants upto a period of two
years. It has nothing to do with the right of the
child/children to claim maintenance under Section 125 Cr. P.
C. So long as the conditions for the grant of maintenance
under Section 125 Cr. P. C. are satisfied, the rights of the
minor children, unable to maintain themselves, are not
affected by Section 3(1)(b) of the 1986 Act. Under Section
125 Cr. P. C. the maintenance of the children is obligatory
on the father (irrespective of his religion) and as long as
he is in a position to do so and the children have no
independent means of their own, it remains his absolute
obligation to provide for them. Insofar as children born of
muslim parents are concerned there is nothing in Section 125
Cr. P. C. which exempts a muslim father from his obligation
to maintain the children. These provisions are not affected
by clause (b) of Section 3(1) of the 1986 Act and indeed it
would be unreasonable, unfair, inequitable and even
preposterous to deny the benefit of Section 125 Cr. P. C. to
the children only on the ground that they are born of Muslim
parents. The effect of a beneficial legislation like Section
125 Cr. P. C., cannot be allowed to be defeated except
through clear provisions of a statute. We do not find
manifestation of any such intention in the 1986 Act to take
away the independent rights of the children to claim
maintenance under Section 125 Cr. P. C. where they are minor
and are unable to maintain themselves. Muslim father’s
obligation, like that of a Hindu father, to maintain his
minor children as contained in Section 125 Cr. P. C. is
absolute and is not at all affected by Section Section
3(1)(b) of the 1986 Act. Indeed a muslim father can claim
custody of the children born through the divorced wife to
fulfil his obligation to maintain them and if he succeeds,
he need not suffer an order or direction under Section 125
Cr. P. C. but where such custody has not been claimed by
him, he cannot refuse and neglect to maintain his minor
children on the ground that the has divorced their mother.
The right of the children to claim maintenance under Section
125 Cr. P. C. is separate, distinct and independent of the
right of their divorcee mother to claim maintenance for
herself for maintaining the infant children upto the age of
2 years from the date of birth of the concerned child under
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Section 3(1) of the Act. There is nothing in the 1986 Act
which in any manner affects the application of the
provisions of Sections 125-128 of the Cr. P. C. relating to
grant of maintenance insofar as minor children of muslim
parents, unable to maintain themselves, are concerned.
Indeed Section 3(1) of 1986 Act begins with a non
obstante clause "notwithstanding any thing contained in any
other law for the time being in force" and clause (b)
thereof provides that a divorced woman shall be entitled to
a reasonable and fair provision for maintenance by her
former husband to maintain the children born out of the
wedlock for a period of two years from the date of birth of
such children, but the non obstante clause in our opinion
only restricts and confines the right of a divorcee muslim
woman to claim or receive maintenance for herself and for
maintenance of the child/children till they attain the age
of tow years, notwithstanding anything contained in any
other law for the time being in force in that behalf. It has
nothing to do with the independent right or entitlement of
the minor children to be maintained by their muslim father.
A careful reading of the provisions of Section 125 Cr. P. C.
and Section 3(1)(b) of the 1986 Act makes it clear that the
two provisions apply and cover different situations and
there is no conflict, much less a real one, between the two.
Whereas the 1986 Act deals with the obligation of a muslim
husband vis-a-vis his divorced wife including the payment of
maintenance to her for a period of two years of fosterage
for maintaining the infant/infants, where they are in the
custody of the mother, the obligation of a muslim father to
maintain the minor children is governed by section 125 Cr.
P. C. and his obligation to maintain them is absolute till
they attain majority or are able to maintain themselves,
whichever date is earlier. In the case of female children
this obligation extends till their marriage. Apart from the
statutory provisions referred to above, even under the
Muslim personal Law, the right of minor children to receive
maintenance from their father, till they are able to
maintain themselves, is absolute.
Prof. Tahir Mahmood, in his book "Statute-Law relating
to Muslims in India" (1995 Edn.) while dealing with the
effect of the provisions of Section 125 Cr. P. C. on the
1986 Act and the Muslim personal law observes at page 198:
"These provisions of the Code
remain fully applicable to the
Muslims, notwithstanding the
controversy resulting from the Has
Bano case and the enactment of the
Muslim Women (Protection of Rights
on divorce) Act, 1986. There is
nothing in that Act in any way
affecting the application of these
provisions to the children and
parents governed by Muslim
law..............................
As regards children, the Code
adopts the age of minority from the
Majority Act, 1875 by saying:
"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" - [Explanation to section
125 (1), clause (a)]. Ordinarily,
thus, every Muslim child below 18
can invoke the CrPC law to obtain
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maintenance from its parents if
they "neglect or refuse" to
maintain it despite "giving
sufficient
means".............................
.......
...................................
......
...................................
......
By Muslim law maintenance (nafaqa)
is a birth right of children and an
absolute liability of the father.
Daughters are entitled to
maintenance till they get married
if they are bakira (maiden), or
till they get remarried if they are
thaviba (divorce/widow). Sons are
entitled to till they attain
bulugh if they are normal; and as
long as necessary if they are
handicapped or indigent. providing
maintenance to daughters is a great
religious virtue. The Prophet had
said:
"Whoever has daughters and
spends all that the has on their
upbringing well, on the Day of
Judgment, be as close to me as two
fingers of a hand.
If a father is a poverty-
stricken and cannot therefore
provide maintenance to his
children, while their mother is
affluent, the mother must provide
them maintenance subject to
reimbursement by the father when
his financial condition improves.
(Emphasis supplied)
Thus, both under the personal law and the statutory law
(Sec. 125 Cr. P. C.) the obligation of a muslim father,
having sufficient means, to maintain his minor children,
unable to maintain themselves, till they attain majority and
in case of females till they get married, is absolute,
notwithstanding the fact that the minor children are living
with the divorced wife.
Thus, our answer to the question posed in the earlier
part of the opinion is that the children of muslim parents
are entitled to claim maintenance under Section 125 Cr. P.
C. for the period till they attain majority or are able to
maintain themselves, whichever is earlier and in case of
females, till they get married, and this right is not
restricted, affected or controlled by divorcee wife’s right
to claim maintenance for maintaining the infant
child/children in her custody for a period of tow years from
the date of birth of the child concerned under Section
3(1)(b) of the 1986 Act. In other words Section 3(1)(b) of
the 1986 Act does not in any way affect the rights of the
minor children of divorced muslim parents to claim
maintenance from their father under Section 125 Cr. P. C.
till they attain majority or are able to maintain
themselves, or in the case of females, till they are
married.
It, therefore, follows that the learned Trial Court was
perfectly right in directing the payment of amount of
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maintenance to each of the three children as per the order
dated 19.1.1993 and the learned 2nd Additional Sessions
Judge also committed no error in dismissing the revision
petition filed by the respondent. The High court, on the
other hand, fell in complete error in holding that the right
to claim maintenance of the children under Section 125 Cr.
P. C. was taken away and superseded by Section 3(1)(b) of
the 1986 Act and that maintenance was payable to the minor
children of Muslim parents only for a period of two years
from the date of the birth of the child concerned
notwithstanding the provisions of Section 125 Cr. P. C.. The
order of the High Court cannot, therefore, be sustained. It
is accordingly set aside. The order of the Trial Court and
the Revisional Court is restored. This appeal succeeds and
is allowed but without any orders as to cost.
The arrears of maintenance in respect of the children
shall be paid by the respondent to the appellant-mother, who
filed the petition on their behalf, within one year form the
date of this order in four equal instalments, payable
quarterly. The first instalment shall be paid on or before
August 15, 1997 and thereafter every three months. Any
single default in the payment of the arrears will entitle
the appellant to recover the entire balance amount at once
with 12% interest through the Trial Court in the manner
prescribed by the Code. The respondent shall continue to pay
maintenance as directed by the trial court, till the
children attain minority or are able to maintain themselves
and in the case of the daughters, till they get married.