Sep 29, 2020 13:25 UTC
Sep 29, 2020 at 13:25 UTC
Case Study: Noor Saba Khatoon v. Mohd. Quasim
Citation: AIR 1997 SC 3280, (1997) 6 SCC 233
Date of Judgement: 29th July, 1997
Bench: A.S. Anand (J), K. Venkataswami (J)
- The appellant married the respondent according to Muslim rites on 27.10.1980 and had three children- two daughters and a son, out of wedlock.
- Due to some disputes 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 1/2 years and refused to maintain her and the children thereafter. Later, the respondent took a second wife, Shahnawaz Begum.
- The first wife (appellant) filed an application u/s 125 Cr.P.C. in the Court of Judicial Magistrate, First Class, Gopalganj, on 13.2.1992. The court granted maintenance to the appellant and her children by the order dated 19.01.1993.
- Thereafter, the respondent divorced the appellant and filed for modification in the order dated 19.01.1993 in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 1986 Act).
Judicial Magistrate First class (trial court) decision:
Under 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 but the right to maintenance u/s 125 Cr.P.C. insofar as the children are concerned was not affected by the 1986 Act in any manner.
2nd Additional Judge (Revision court) decision:
Dismissed the revision petition.
High Court decision:
U/s 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 u/ Section 125 Cr. P. C. after the coming into force of the 1986 Act.
Whether the children of Muslim parents are entitled to grant of maintenance u/s 125 Cr.P.C. or is their right limited to the grant of maintenance only for a period of two years prescribed u/s. 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986?
Supreme Court Verdict:
The Court held that Section 3(1)(b) of the 1986 Act provides for the grant of additional maintenance to the mother 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 Sec 3(1)(b) 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 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. the maintenance of the children is obligatory on the father 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.
A careful reading of the provisions of Sec 125 Cr.P.C. and Sec 3(1)(b) of the 1986 Act makes it clear that the two provisions apply and cover different situations and there is no conflict 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 Sec 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.
Thus, every Muslim child below 18 can invoke the CrPC law to obtain maintenance from its parents if they “neglect or refuse” to maintain it despite “giving sufficient means”
Court held that the children of Muslim parents are entitled to claim maintenance u/s 125 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.