NOOR SABA KHATOON Vs. MOHAMMAD QUASIM

JUDGEMENT

(1.) A short but interesting question involved in this appeal, by Special Leave, is 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 restricted 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.

(2.) The appellant married the respondent according to Muslim rites on 27-10-1980. During the wedlock, three children were born - two daughters and a son. On certain disputes arising 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 11/2 years and also refused and neglected to maintain her and the children thereafter. After turning the appellant out of the matrimonial home, the respondent took a second wife, Shahnawaz Begum. Claiming that the appellant has no means to maintain herself and the children and that the respondent had both agricultural land and was carrying on business in electrical appliances as well and had sufficient income and means to maintain them, she filed an application under Section 125, Cr. P.C. in the Court of Shri A. K. Jha, Judicial Magistrate, First Class, Gopalganj, on 13-2-1992. She claimed a sum of Rs. 400/- per month for herself and Rs. 300/- per month as maintenance for each of the three children. The application was contested, though it was only the appellant, who adduced evidence at the trial and the respondent/husband did not lead any evidence. The Trial Court found that the respondent had failed and neglected to maintain his wife and children and that they had no source of income or means to maintain themselves and accordingly held that they were entitled to the grant of maintenance from the respondent. By its order dated 19-1-1993, the Trial Court directed the respondent to pay maintenance to the appellant at the rate of Rs. 200/- per month for herself and at the rate of Rs. 150/- per month for each of the three minor children, till they attain the age of majority. While the matter rested thus, the respondent divorced the appellant and thereafter filed an application in the Trial Court seeking modification of the order dated 19-1-1993, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 1986 Act). By an order dated 27-7-1993, the Trial Court modified the order dated 19-1-1993, insofar as the grant of maintenance to the appellant is concerned while maintaining the order granting maintenance to each of the three minor children. Insofar as the appellant is concerned, the Trial Court held that in view of the provisions of 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. 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 order dated 27-7-1993 was challenged by the respondent through a Revision Petition in the Court of 2nd Additional Judge, Gopalganj. On 16-7-1994, the revisional Court dismissed the revision petition holding that the 1986 Act does not override the provisions of Section 125, Cr. P.C. for 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 from her husband for maintaining the 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 Misc. 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 filing 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 11/2 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 to appeal the appellant has come up to this Court.

(3.) The facts are not in dispute. The appellant 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 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 11/2 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.