INTRODUCTION
The case Noor Saba Khatoon vs. Mohd. Quasim, 1997 answers the question arising before the court that whether the children of Muslim parents are entitled to get maintenance under Section 125 of Cr.P.C. for a period till they attain majority or till the time they can maintain themselves and for girls till they get married; or is there right restricted under Section 3 (1) (b) of Muslim Women (Protection of Right on Divorce) Act, 1986 that grants the maintenance only for two years. The case received a verdict that was very crucial for the muslim community, as it prioritized the rights of an Indian muslim child over their religious texts.
FACTS OF THE CASE
The appellant wife(Noor Saba Khatoon) and respondent husband(Mohd. Qasim) got married on 27th October 1980. During their course of marriage, they had 3 children. One day due to some matrimonial issues, the husband threw the wife and kids out of the matrimonial house and thereby refused to maintain them. When he did so, at that time the kids were of age- 6 years, 3 years, and an infant of 1 1/2 years. The husband then married a second wife, Shahnawaz Begum, and continued to live with her.
The appellant (first wife) then filed a case under Section 125 Cr.P.C. in the Trial Court of Gopalganj district headed under Justice A. K. Jha. She claimed maintenance of Rs. 400/- per month for herself and a sum of Rs. 300/- per month for each of the three children. The court found that the respondent husband failed and neglected to maintain his wife and children and since they had no source of income, they were entitled to get the maintenance from the respondent.
On 19th January 1993, the court gave its verdict in the favour of the appellant and ordered the respondent to pay a sum of Rs. 200/- per month to the wife and Rs/- 150 per month to each of the three children, till they attain majority or become capable enough to maintain themselves, whatsoever happens first. The respondent then divorced the wife and filled an application for reviewing the order of date, 19-01-1993, under Section 3 (1) (b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. By an order on 27th July 1993, the court found that according to the provisions Section 3 (1) (b) of the Act, the respondent was entitled to maintain the wife and kids for 3 months, till the period of Iddat, and also these provisions didn’t affect the right to maintenance of the children as mentioned in Section 125 of Cr.P.C.
The appellant wife filed a review petition in the Court of 2nd Additional Judge, for reviewing the order of maintenance by the Trial Court but the petition was eventually dismissed by the court. The revision court also held that the provisions of the Act did not override the provisions under Section 125 of Cr.P.C. as both are independent in their own way. The appellant, thereupon, filed a Criminal Miscellaneous case in the High Court under Section 482 of Cr.P.C. seeking justice and reviewing the order by the lower court. The High Court accepted the plea of the appellant wife and during the session, it was observed that the children were aged 6 years and 3 years when the plea for maintenance was filled in the Trial Court by their mother and hence they were not entitled to the maintenance and the third child was aged 1 1/2 years was entitled to get maintenance till she attains the age of two I.e. till the date 19-07-1993, from the filling of the application on 13-02-1992. Thereafter, by Special Leave, the wife appealed in the Supreme Court.
ISSUES
- Whether the provisions of maintenance of Muslim children under Section (3) (1) (b) of Muslim Women (Protection of Rights on Divorce) override the provisions under Section 125 of Cr.P.C.?
CONTENTION OF APPELLANT
- The appellant claimed a maintenance price of Rs. 400/- per month for herself.
- The demand of maintenance for each of the minor kids of Rs. 300/- per month, till they become major or start earning their living and in the case of the daughter, till she gets married.
- The respondent husband having enough farming land and an electrical appliance business can easily maintain the wife and children, but the wife on the other hand had no source of earnings and hence, she could not maintain herself and the 3 children.
CONTENTION OF RESPONDENT
- The husband under Section 3 (1) (b) of Muslim Women (Protection of Rights on Divorce) had no duty to maintain the children after they have attained the age of 2 years.
- The husband also had a religious right to marry another woman other than her wife and by no means can be held liable for not paying attention to his first wife.
JUDGEMENT
The Supreme Court examined the provisions of Section 3 (1) (b) with the provisions under Section 125 of Cr.P.C., for the maintenance of children of Muslim parents. The Act was the result of the judgment of the case, Shah Bano Vs. Mohd. Ahmed Khan, Air 1985 SC 945, but the case had no involvement in the maintenance of minor children and continued to be governed under Section 125 of Cr.P.C. Section (3) (1) (b) explains that the wife must take care of the kids after divorce and the husband is liable to maintain the kids till they are 2 years of age from the date on which the respective child was born. This right gives the Muslim Husband a choice to maintain or not to maintain the children post-divorce period.
The provisions under Section 125 of Cr.P.C. state that the divorced husband or wife who does not have custody of the kids is liable to pay the maintenance of the children (irrespective of the religion they belong to), till the time they attain majority or till the time they become capable enough to earn their living and maintain themselves, whatever happens early. Till now, the provisions of the two sections didn’t override each other but this would be unfair, unreasonable, and unjust for the children if they were born into a Muslim family. Hence, a Muslim father can indeed claim the custody of the kids through the order by the court and if he succeeds then he need not suffer any charges under Section 125 of Cr.P.C. but if he fails to do so, then he must maintain the children till they attain the majority. The Section 125 of Cr.P.C. is an absolute and independent right for the maintenance of children it is not related in any way to the maintenance of the divorcee wife and her infant child for a period of two years, as mentioned under Section 3 (1) of the Muslim Women (Protection of Rights on Divorce).
The Supreme Court upheld the first decision of the Tribunal Court, that the respondent husband was to pay the maintenance to the appellant wife in four different installments quarterly in a year, and failing or making an error in the payment of any installment entitles the appellant to recover the full amount with an interest of 12% through the Tribal Court as prescribed in the Criminal Procedural Code. The amount has to be paid till the children attain majority or in the case of the female, till she gets married.
CONCLUSION
The case concluded that being a child of a muslim family does not mean that the rights to receive the maintenance get suppressed as mentioned under Section 125 of the code. Also, the Tribunal Court and revision Court were correct in their respective decision of allowing the maintenance and codifying the provisions of Section 3 (1) (b) with Section 125 of Cr.P.C., but the High Court shouldn’t have dismissed the petition. This case was very crucial not only for Muslims but for every other religion too, as it clarified the fact general rights of citizens of India are prioritized over the religion-specific rights (if it violates the norms of general rights).
REFERENCE
This article is written by Ansh Mishra, a student of Maharaja Agrasen Institute of Management Science (MAIMS), GGSIPU; an intern at Legal Vidhiya.
0 Comments