Mahaboob Ali Alias Khalid vs Abdul Rasheed Alias Zeehan on 1/6/1999

ORDER

G.C. Bharuka, J.

1. The present civil revision petition is filed under Section 19(1) of the Family Courts Act, 1984, is directed against the order dated 27-2-1999 passed by the Family Court at Raichur, in Cr. Misc. No. 28 of 1998 by which the petitioner has been directed to pay Rs. 500/- per month as maintenance to his minor child born out of his wife who is subsequently divorced.

2. This case has been referred to Division Bench on a reference made by the learned Single Judge in his order dated 11-1-1999 for considering the following questions of law:

"The first question is:

Whether in view of Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the child is not entitled to claim any maintenance under Section 125 of the Criminal Procedure Code from his father, who has divorced the child's mother, irrespective of whether child was born before or after the divorce?

The second question is:

If the answer to Question No. 1 is in the affirmative i.e., if child's right to claim maintenance under Section 125 of the Cr. P.C. during the period of his minority stands, barred by Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Whether such provision can be said to be hit by Article 21 which gives right to life as well as is hit by Articles 14, 15 and 16 of the Constitution of India and preamble of the Constitution which talk of assuring dignity of human being and the basic structure of the Constitution of India?"

3. The present petitioner had married Smt. Sajeeda Begum, the mother of the respondent-child, on 2-6-1994 but subsequently he divorced her on 28-12-1996 by giving 'Talak'. The respondent-child was born to them on 17-8-1995. Presently he is in the custody and care of the mother as per the order of the Court dated 7-8-1997. The respondent-child, represented through her mother, filed an application for maintenance under Section 125 of the Cr. P.C. on 6-10-1997, which has been allowed by the impugned order.

4. In our opinion, referring of questions by the learned Single Judge to Division Bench would not have at all necessitated if the attention of the Court would have been drawn to the judgment of the Supreme Court in the case ofNoor Saba Khatoon v Mohd. Quasim, wherein an identical question has been answered by the Supreme Court. The question raised before the Supreme Court was:

"Does Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, in any way affect the rights of the minor children of divorced Muslim parents to the grant of maintenance under Section 125 of the Cr. P.C.".

Section 3 of the 1986 Act to the extent it is relevant for the present case reads as under:

"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 by 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 years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the 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 her marriage by her relatives or friends or the husband or any relatives of the husband or his friends".

In paragraph 7 of the judgment, the Supreme Court has held that:

"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 of the divorced mother on her own behalf for maintaining the infant/infants for a period of two 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 up to a period of two years. It has nothing to do with the right of the child/children to claim maintenance under Section 125 of the Cr. P.C. So long as the conditions for the grant of maintenance under Section 125 of the 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 of the 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 to 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 of the 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 of the 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 of the 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 of the Cr. P.C. where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 of the Cr. P.C. is absolute and is not at all affected by 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 of the 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 he has divorced their mother. The right of the children to claim maintenance under Section 125 of the 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 up to the age of 2 years from the date of birth of the child concerned 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 to 128 of the Cr. P.C. relating to grant of maintenance insofar as minor children of Muslim parents, unable to maintain themselves, are concerned".

Again the proposition of law has been set out in paragraphs 10 and 11 of the report, which reads thus:

"Thus, both under the Personal Law and the statutory law (Section 125 of the 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 of the 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 the divorcee wife's right to claim maintenance for maintaining the infant child/children in her custody for a period of two 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 of the Cr. P.C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married".

5. In the above view of the matter, in our opinion, the judgment of the learned Single Judge reported in the case of Mohammed Jahir u Smt. Nazrath Fatima, on which reliance was sought to be placed by Sri K.S. Savanur, learned Counsel for the petitioner stood impliedly overruled in respect of the question here in much before the filing of the present revision petition itself. Therefore, the question under reference was no more available for being adjudicated" either before the Family Court or this Court.

6. So far as quantum of maintenance is concerned, keeping in view the evidence adduced in the case and the findings of fact recorded by the Trial Court, it does not warrant any interference by this Court in revisional jurisdiction.

7. In the above view of the matter, this revision petition is dismissed being wholly misconceived with costs assessed at Rs. 5,000/- to be paid by the petitioner to the respondent-minor child through a crossed bank draft to be drawn in favour of the child through her mother which should be remitted within two weeks from today under registered post with acknowledgment due.

8. A copy of this order be sent to the respondent-child at the cost of the Court.