Case – Noor Saba Khatoon v. Mohd. Quasim, 1997
Fact – 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 along with the three children then aged 6 years, 3 years and 1 ½ 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.
She filed an application for maintenance under Section 125 CrPC in the Court. 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 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, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
By an order, the trial court modified the previous order, 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 CrPC insofar as the children are concerned was not affected by the 1986 Act in any manner.
The revisional court dismissed the revision petition holding that the 1986 Act does not override the provisions of Section 125 CrPC for grant of maintenance to the minor children.
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 child concerned and that the minor children were not entitled to claim maintenance under Section 125 CrPC after the coming into force of the 1986 Act.
Issue – Whether the children of Muslim parents are entitled to grant of maintenance under Section 125 CrPC for the period till they attain majority or is their right restricted 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 CrPC?
Contentions and Judgement
- Section 3 of the 1986 Act to the extent relevant for this case reads:
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.-
- Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to— (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;
- 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 CrPC.
So long as the conditions for the grant of maintenance under Section 125 CrPC are satisfied, the rights ofthe minor children, unable to maintain themselves, are not affected by Section 3(1)(b) of the 1986 Act. Under Section 125 CrPC 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 haveno independent means of their own, it remains his absolute obligation to provide for them.
- 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 CrPC to the children only on the ground that they are born of Muslim parents.
- 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 CrPC 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.
- A careful reading of the provisions of Section 125 CrPC 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.
- By Muslim law, maintenance (nafaqa) is a birthright 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 thayiba (divorcee/widow). Sons are entitled to it 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.
