The question before the court in the case of Noor Saba Khatoon vs Mohd. Quasim, 1997. The exact question before the court was that,
“whether the children of muslim parents are entitled to grant of maintenance under Section 125, Cr. P. C. for the period till they attain majority or are able to maintain themselves whichever date is earlier or in the case of female children till they get married or
is their right restrict 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 Cr. P. C?”
Facts of the case
- The appellant (wife) had filed a petition for grant of maintenance under Section 125 Cr. P. C. for herself as well as on behalf of the three children born during the wedlock, who were living with her, since the respondent (husband) had refused and neglected to maintain them.
- On the date of the application filed under Section 125 Cr. P. C. i.e. 13.2.1992, the children were aged 6 years 3 years and 1 1/2 years.
- After the Trial Court granted the petition under Section 125 Cr. P. C. in favour of the appellant and the three minor children, the respondent divorced the appellant and filed an application seeking modification of the order of maintenance in view of the provisions of the 1986 Act.
- The trial court modified its order qua the appellant, restricting the grant of maintenance to the period of Iddat but maintained its earlier order insofar as the children are concerned.
- While the revisional court declined to interfere with the order of the Trial Court, the High Court based itself on Section 3(1)(b) of the 1986 Act to hold that the grant of maintenance to the children of divorced muslim parents, living with their mother, was restricted to the period prescribed under the said section notwithstanding the provisions of Section 125 Cr. P. C.
- Then the appellant approached the supreme court through an appeal.
Overlook of the law by the Court
The act, 1986
The 1986 Act was enacted as a sequel to the judgment in Mohd. Ahmed Khan vs. shah Bano Begum, AIR 1985 SC 945. The question of maintenance of children was not involved in the controversy arising out of the judgment in the case of Shah Bano Begum (supra).
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 with Section 125 Cr. P. C. This position clearly emerges from a perusal of the relevant provisions of the 1986 Act.
Section 3 of 1986 Act
Section 3 of the 1986 Act to the extent relevant for this case reads:
Sec. 3 Mahr or other properties of Muslim woman to be given to her at the time of divorce. –
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period her former husband;
(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 dated of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.”
Analysis of the section
From a plain reading of the above Section it is manifest that it deals with “Mahr” or other properties of a muslim woman to be given to her at the time of divorce. It lays down that a reasonable and fair provision has to be made for payment of maintenance to her during the period of Iddat by her former husband.
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 upto 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 (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 of 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.
The court said that, 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.
The court further also referred ‘Tahir Mahmood’s book on muslim law’. Prof. Tahir Mahmood, in his book “Statute-Law relating to Muslims in India” (1995 Edn.) while dealing with the effect of the provisions of Section 125 Cr. P. C. on the 1986 Act and the Muslim personal law observed at page 198:
“These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the shah Bano case and the enactment of the Muslim Women (Protection of Rights on divorce) Act, 1986. There is nothing in that Act in any way affecting the application of these provisions to the children and parents governed by Muslim law…………………………
Ordinarily, 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”;
By Muslim law maintenance (nafaqa) is a birth right 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 thaviba (divorce/widow). Sons are entitled to 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.
The Prophet had said: “Whoever has daughters and spends all that he has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand.”
Thus, both under the personal law and the statutory law (Sec. 125 Cr. P. C.) the obligation of a muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.
Noor Saba Khatoon vs Mohd. Quasim on 29 July, 1997