Case Name: Noor Saba Khatoon v. Mohd. Quasim
Equivalent citation: AIR 1997 SC 3280
Date of Judgement: 29 July 1997
Court: Supreme Court of India
Case no.: Crl.A. No.-001197-001197 / 1995
Case Type: Criminal Appeal for Maintenance
Appellant: Noor Saba Khatoon
Respondent: Mohd. Quasim
Bench: A.S. Anand, K.Venkataswami
Referred: Muslim Women (Protection of Rights on Divorce) Act,1986 – Section 3(1)(b), Section 125 Cr. P. C.
FACTS OF THE CASE
- The appellant married the respondent on 27 October 1980 according to Muslim rites. During their marriage, three children, two daughters and a son were born to them. Due to marital disputes, the respondent turned the appellant and their children from his house. The Children were then aged 6, 3 and 1.5 years. After that, the respondent refused and neglected to maintain the appellant and the children.
- Later, the respondent married a second wife. The appellant claimed that she had no means to maintain herself and the children but the respondent was capable of doing so because he owned agricultural land as well as an electrical appliance business and had sufficient sources of income to maintain the wife and children and filed an application under Section 125 Cr.P.C. at the Court of the Judicial Magistrate, First Class at Gopalganj on 13 February 1992.
- She claimed for herself a sum of 400/- per month and 300/- for a month for each of the children as maintenance from the respondent. The Trial Court found out that the respondent had neglected to provide maintenance to the appellant and his children and that the appellant had no source of income or means to maintain herself and the children and held that they were entitled to receive maintenance from the respondent and by its order dated 19 January 1993, the Trial Court directed the respondent to pay a sum of 200/- per month to the appellant and 150/- per month for each of the children as maintenance, till they attained the age of majority.
- On a later date, the respondent divorced the appellant and filed an application before the Trial Court seeking to modify the order dated 19 January 1993. On 27 July 1993, the Trial Court modified the order dated 19 January 1993, insofar as the grant of maintenance to the appellant was concerned while maintaining the order granting maintenance to each of the three minor children.
- Insofar as the appellant was concerned, the Trial Court was of the view that according to the provisions of the 1986 Act, the appellant, now being divorced, was only entitled to maintenance for a period of three months, i.e., the period of ‘Iddat’. Iddat is a period of waiting or chastity that a Muslim woman is supposed to observe, following the separation from her husband either due to the death of the husband or divorce. And only after observing the mentioned period, she is allowed to remarry again. 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 appellant challenged the order through a revision petition at the Court of the 2nd Additional Judge, Gopaganj. The Court dismissed the revision petition claiming that the 1986 Act does not override the provisions of Section 125 Cr.P.C. for the 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 for her 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 Miscellaneous 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 two 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, the petitioner filed an appeal before the Supreme Court of India.
ISSUE RAISED
Does Section 3(1)(b) of the 1986 Act in any way affect the rights of the minor children of divorced Muslim parents to the grant of maintenance under Section 125 Cr. P. C.?
ARGUMENTS MADE BY THE COURT
- 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[1]. The question of the maintenance of children was not involved in the controversy arising out of the judgment in the case of Shah Bano Begum. 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 by Section 125 Cr. P. C.. This position clearly emerges from a perusal of the relevant provisions of the 1986 Act.
- 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 by Section 125 Cr. P. C.. This position clearly emerges from a perusal of the relevant provisions of the 1986 Act.
- Clause (b) of Section 3(1) provides for the 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 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 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., 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 to 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.
RATIO DECIDENDI
- 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 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.
- 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 Muslim Personal Law, the right of minor children to receive maintenance from their father, till they are able to maintain themselves, is absolute.
- By Muslim law, maintenance (nafaqa) is a birthright of children and an absolute liability of the father.
- 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 up to 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.
JUDGEMENT
The order of the Trial Court and the Revisional Court was restored and the appeal succeeded.
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 the 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 two years from the date of birth of the child concerned under Section 3(1)(b) of the 1986 Act.
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.
CONCLUSION
It, therefore, follows that the learned Trial Court was perfectly right in directing the payment of an 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.
[1] AIR 1985 SC 945
This article is written by Mahima Susan John of Government Law College Thiruvananthapuram, an intern under Legal Vidhiya
