FACTS OF THE CASE
- The applicant Noorjahan Allabuksh Shaikh filed an application under 125 Code of Criminal Procedure .
- Under Section 125 Code of Criminal Procedure , she asserted maintenance for herself and for her daughter from her estranged husband and father respectively
- The application has been rejected so far it related to the claim of the divorced wife. But has been allowed so far it relates to the claim of the minor daughter
- The husband/father Allabuksh Karim Shaikh was not satisfied with the order so he had filed an appeal and challenged the grant of maintenance to the daughter.
- He asserted he was not able to pay maintenance to the daughter on the purview of the provision of the Muslim Woman (Protection of Rights on Divorce) Act,1986
- The application was filed before the Metropolitan Magistrate at Bandra , but the same thereafter stood transferred to the Family Court at Bandra under the section 8 (c) of the Family Court Act, 1984. The Family Court disposed the application in the manner stated above.
ISSUE RAISED
- Whether Muslim Woman (Protection of Rights on Divorce) Act,1986 will overule the 125 Code of Criminal Procedure
- Entilement of maintenance of minor daughter is validate under 125 Code of Criminal Procedure.
- What is the scope of maintenance under Muslim Women Act ?
CONTENTION BY APPELLANT :
- He was against the order made by Family Court for granting maintenance to the minor daughter by him . he asserted that he was not liable to pay maintenance to the minor daughter as the result of the operation of the Muslim Women (Protection of Rights on Divorce ) Act, 1986.
- As per the act , a minor child is entitled to be maintained only for a period of 2 years from the date of its birth under the provision of Section 3(1) of the above mention act .
CONTENTIONS BY RESPONDENT :
- The section 125 Code of Criminal Procedure provides the full entitlement of maintenance to her minor daughter . The order of Family Court is validated and Rationale .
JUDGEMENT
After recognising all the facts and facets , the Court stated that the scrutiny of the provision of Muslim Women ( Protection of Rights on Divorce ) Act ,1986 hereinafter referred to as “ the Muslim Women Act “ , left not a single doubt that the act shall operate only when a “ divorced women “ as defined in that Act , applies for maintenance against the former husband.
The act also made it clear that there was not any provision which deals with the application in which the grant of maintenance can be deal for the minor child . but this application was operating under the 125 Code of Criminal Procedure .
The Muslim Women Act is the to protect the rights of Muslim Women who have been divorced by or have obtained divorce from their husband and to provide for matters connected therewith or incidental thereto.
The Court stated that therefore , it explicated that the Muslim Women Act professes to deal with Muslim Divorced Women and their Rights against their former husband and does not profess to cover the cases of claim for the maintenance by the children of the marriage
The Court held that the Right of maintenance which a child has under the law is an independent Right of the child and cannot be squeezed in within the expression matter connected therewith or incidental thereto as per the Muslim Women Act.
According to the Section 3(1)(b) provides that a divorced woman shall be entitled to as per the laws of the Muslim Women Act
Apart from it , according the provision the fair maintenance to be made and paid by her former husband for a period of 2 years from the respective date of birth of such children.
But as the relevant expression made it absolutely clear , that this was the entitlement of the Divorced Women herself in a given case where she maintain the children.
Consequently , had nothing to do with the independent right on claim of the children themselves to be maintained by their father under the provision of Muslim Law or under the Chapter IX of the Code of Criminal Procedure .
The Court held that it become absolutely clear that the Muslim Women Act, which includes Section 3, Section 4,Section 5 only referred the application of Divorced Women , must lead us to conclude that the Muslim Women Act of 1986 , cannot show its head where a child or any other person than a Muslim Divorced women is the applicant for Maintenance .
The Court stated that they are accordingly totally satisfied with the Family Court jurisdiction . The Family Court is fully justified in allowing the application with 125 Code of Criminal Procedure so far it related to the claim of the daughter who herself being one of the applicant before the court .
Therefore , the appeal treated as the revisional application , is accordingly rejected with cost and the order of maintenance made by the Family Court in respect of the minor daughter is confirmed .
CONCLUSION
The Muslim Women Protection of Rights on Divorced Act 1986, hereinafter referred to as the “ Muslim Women Act “ will only operating those claim which are related to the Divorced Women .
The maintenance for the minor child from their father is not provided under the above mentioned above .
The maintenance for child under the Muslim Women Act is only for the 2 years from the date of the birth , otherwise the mother herself maintain the child after divorce.
The maintenance for the minor child is only can operated under Section 125 Code of Criminal Procedure . According to the Court , the grant of maintenance to the minor child is totally validated .
The right of maintenance which a child has under the law is an independent right to the child and nothing to do with the divorced mother .
This article is written by Pragati Gautam of Maharshi Dayanand University, an intern under legal Vihdhiya
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