Noor Saba Khatoon vs Mohd. Quasim on 29 July, 1997

    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 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. 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

   (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 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

     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 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.