NOORSABA KHATOONversusMOHAD. QUASIM

                        NOORSABA KHATOON                                        A
                                     v.
                           MOHAD. QUASIM

                              JULY 29, 1997

          [DR. A.S. ANAND AND K. VENKATASWAMI, JJ.]                             B

        Code of Criminal ['rocedure, 1973 : S. 125-Children of Muslim
parents-Held : entitled to grant maintenance for the period till they attain
majority or are able to maintain themselves, and in case offem ale children
till they get manied.                                                           c
       Muslim Women (Protection of Rights on Divorce) Act 1986-S.
3( l)(b )-Divorced Muslim woman-Provision for maintenance to be paid by
her Janner husband for a period-of two years from the respective dates of birlh
of the Children. Held : the provision does not affect the rights of the minor
children of divorce Muslim parents to the grant of maintenance under section D
125 Cr.P.C.

      The appellant married the respondent according to Muslim rites
and 3 children were born to them, two daughters and one son. The
respondent turned the appellant and the children out of the matrimonial         E
home; the children were 6 years, 3 years and 1-1/2 years respectively. The
respondent then took a second wife. The appellant, being unable to main-
tain herself and the children, filed an application under section 125 Cr.P.C.
claiming a sum of Rs. 400 per month for herself and Rs. 300 for each of
the three children. The trial court directed the respondent to pay main-
tenance to the appellant at the rate of Rs. 200 per month, and Rs. 150 each     F
for the three minor children till they attain the age of majority.

      Meanwhile the respondent divorced the appellant, and filed an ap-
plication in the trial court seeking modification of order of the main-
tenance, in view of the provisions of the Muslim Women (Protection of G
Rights on Divorce) Act 1986. The trial court modified the orde1· as regards
maintenance to her and held that she 'Yas entitled for maintenance only
upto the period of Iddat; and retained the order as regards the grant of
maintenance to the children. The trial court also observed that the right·
of maintenance under Section 125 Cr.P.C. was not affected by the 1986 Act
in any manner. The respondent challenged the order by way of a revision H
                                    129
    130                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A   petition. However in a petition u/s. 482 Cr.P.C., the High Court held that
    the divorced Muslim woman was entitled to claim mllt'ntenance for her
                                                                                       ·.
    minor children only for a period of 2 years from the date of birth of the
    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.
B   Aggrieved, the wife· filed the present appeal.

          Allowing the appeal, this court

          HELD : 1.1. The High Court erred in holding that the right to claim
    maintenance of the children under Section 125 Cr.P.C. was taken away and
C   supersede.d by section 3(l)(b) of the Muslim Women (Protection of Right
    on Divorce) Act 1986. The right of the children.to claim maintenance under
    S. 125 Cr.P.C. till they attain majority or are able to maintain themselves
    in case of males and till they get married in case of females, is separate
    and there is nothing in the 1986 Act which affects the application of the
    provisions of Sections 125 to 128 of the Cr.P.C. relating to the grant of
D   maintenance. The provisions of S. 125 Cr.P.C. and S. 3(1)(b) of tlie 1986
    Act make it clear that the two provisions apply and cover different situa-
    tions and there is no conflict. (138-E-G; 136-F-H]

          1.2. The right of minor children to receive maintenance from their
E   father till they are able to maintain themselves is absolute. It would be
    unfair to deny benefit of S. 125 Cr.P.C. to the children only on the ground
    that they are. born to Muslim parents. The effect of a beneficial legislation
    like 125 C~.P.C. cannot be allowed to be defeated except through clear
    provisions of a statute. (135-E-G]

F         "Statute law relating to Muslim in India" by prof. Tahir Mahamood,
    referred to

          2. The ·non obstant.e clause "not withstanding anything contained in
    any other law for the time being in force", occurring in S. 3(1) (b) of the 1986
    Act, restricts and confines the rights of divorced Muslim woman to claim
G   maintenance. for herself and children till they attain the age of 2. (136-D-E]

          3. Muslim father's obligation to maintain his minor children like
    that a Hindu as contained in S. 125 Cr.P.C. is absolute and not affected
    by section 3(1)(b) of the 1986 Act. A Muslim father can claim custody of
H   the children to maintain them but when custody has not been claimed by
      NOORSABAKHATOON v. MOHD. QUASIM [DR. ANAND, J.)                    131

him, he cannot refuse and neglect to maintain his minor childr~n on the A
ground that he has divorced their mother. [136-A-B]

       4. The arrears of maintenance in respect of the children shall be paid
by respondent to the appellant mother. The respondent shall continue to
pay the maintenance as directed by the High Court, to the children till they
attain majority or are able to maintain themselves and in case of daughter      B
till they get married. [139-B-C]

     Mohd. Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945,
Referred to.

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                       C
1197 of 1995.

      From the Judgment and Order dated 11.1.95 of the Patna High Court
in Crl. Misc. No. 13180 of 1994.

      A. Sharan for the Appellant.                                              D

      Ejaz Maqbool for the Respondent.

      The Judgment of the Court was delivered by

        DR. ANAND, J. A short but interesting question involved in this E
appeal, hy Special Leave, is whether the children of muslim parents arc
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 F
prescribed under Section 3(1)(b) of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 notwithstanding Section 125 Cr .P~C.

       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, lhe respondent G
 allegedly turned the appellant out of the matrimonial home along with the
 three children then aged 6 years, 3 years and 1-1/2 yeas 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 H
    132                   SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A maintain herself and the children and that the respondent had both agricul- .
  tural 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 AK. Jha, Judicial
  Magistrate, First Class, Gopalganj, on 13.2.1992. She claimed a sum of Rs.
B 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 tht: trial and the respondent/hus-
  band 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
C held that they were entitled to the grant of maintenance from the respon-
  dent. 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,
D 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
E 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
  lddat. The Trial Court further found that the right to maintenance under
F 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 Addi-
   tional Judge, Gopalganj. On 16.7.1994, the revisional court dismissed the
   revision petition holding that the 1986 Act does not over-ride the provisions
G 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
H and that the said provision did not affect the right to maintenance of the
      NOORSABA KHATOON v. MOHD. QUASIM [DR. ANAND, J.]                  133

minor children grnnted ~y Section 125 Cr.P.C. The respondent, thereupon, A
filed 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 B
vide Section 3(1)(b) of the 1986 Act, a divorced muslim woman is entitled
to claim maintenance from her pervious husband for her minor children
only for a period of two years from the date of birth o( 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 C
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 1-112 years of age on 19.1.1993, was D
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-hus-
band was partly allowed. By special leave to appeal the appellant has come
up to this Court.                                                              E

       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
                                                                            F
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 G
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 H
    134                   SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A 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.

         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
B   under Section 125 Cr.P.C. is thus the moot question?

          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
c           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 v. Shah Bano Begum, AIR (1985) SC 945. The
D   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 i11acted to regulate the obligations of a muslim father to
    maintain his mii'lor 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.
E
          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) Notwithstanting anything con-
            tained in any other law for the time being in force, a divorced
F           woman shall be entitled to.

               (a) a reasonable and fair provision and maintenance to be made
            and paid to her within the iddat period by her former husband;

                 (b) where she herself maintains the children born to her before
G            or after her divorce, a reasonable and fair provision and main-
             tenance to be made and paid by her former husband for a period
             of two years from the respective dates of birth of such children;

                (c) an amount equal to the sum of mahr or dower agreed to
             be paid to her at the time of her marriage or at any time thereafter
H            according to Muslim law; and
     NOORSABA KHATOON v. MOHD. QUASIM [DR. ANAND, J.]                 135

           (d) all the properties given to her before or at the time of A
        marriage or after the marriage by her relatives or friends or the
        husband or any relatives of the husband or his friends.



                                                                            B
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 lddat by her
former husband. Clause (b) of Section 3(1) (supra) provides for grant of
additional maintenance to her for the fosterage period of two years from C
the date of birth of the child born ~ut of that 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 of the
divorced mother 011 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 D
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 E
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 F
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 cl~use (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 effect of a
                                                                               G'
beneficial legislation like Section 125 Cr.P.C., cannot be· allowed to be
defeated except through clear prov~sions of a statute. We do not find
manifestation of any such intention in the 1986 Act to take away the
independent rights to the children to claim maintenance under Section 125
Cr.P.C. where they are minor and are unable .. to maintain themselves. H
    136                   SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A 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
B
    not been claimed by him, he cannot refuse and neglect to maintain his
    minor children on the ground that he has divorced their mother. 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 upto the age of
C   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.
D
           Indeed Section 3(1) of 1986 Act begins with a non obstante clause
    "notwithstanding any thing contained in any other law for the time being
    in force" and clause (b) thereof provides that a divorced woman shall be
    entitled to a reasonable and fair provision for maintenance by her former
    husband to maintain the children born out of the wedlock for a period of
E   two years from the date of birth of such children, but the non obstante
    clause in our opinion only restricts and confines the right of a divorcee
    muslim woman to claim or receive maintenance for herself and for main-
    tenance of the child/children till they attain the age of two years, not-
    withstanding anything contained in any other law for the time being in force
F   in that behalf. It has nothing to do with the independent right or entitlement
    of the minor children to be maintained by their muslim father. 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 i;wo 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
G   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 obJigation 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
H    to maintain themselves, whichever date is earlier. In the case of female
           NOORSABA KHATOON'" MOHD. QUASIM [DR. ANAND, J.]                     137

     children this obligation extends till their marriage. Apart from the statutory   A
     provisions referred to above, even under the Muslim Personal Law, the
     right of minor children to receive maintenance from their father, till they
     are able to maintain themselves, is absolute.

           Prof. Tahir Mahamood, in his book "Statute-Law relating to Muslims
     in India" (1995 Edn.) while dealing with the effect of the provisions of         B
     Section 125 Cr.P.C. on the 1986 Act and the Muslim personal law observes
     at page 198:

                "These provisions of the Code remain fully applicable to the
             Muslims, notwithstanding the controversy resulting from the Shah         C
             Bano case and the enactment to 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 ......

                 As regards children, the Code adopts the age of minority from        D
             the Majority Act, 1875 by saying : "Minor means a person who,
             under the provisions of the Indian Majority Act, 1875 (9 of 1875)
             is deemed not to have attained his majority" - (Explanation to
             section 125(1), clause (a). Ordinarily thus, every Muslim child below
             18 can invoke the Cr.P.C. law to obtain maintenance from its parents
             if they "neglect or refuse" to maintain it despite "having sufficient E
             means" .......




                                                                                      F
                 By Muslim law maintenance (nafaga) 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 thayiba (divoreee/widow ). Sons are
             entitled to it till they attain bu/ugh if they are normal; and as long


-
             as necessary if they are handicapped or indigent. Providing main- G
             tenance 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."                                               I!
    138                  SUPREMECOURTREPORTS [1997]SUPP.3S.C.R.

A              If a father is a poverty-stricken and cannot therefore provide
            maintenance to his children, while their mother is affluent, the
            mother must provide them maintenance subject to reimbursement
            by the father then his financial condition improves."

                                                           (Emphasis supplied)
B
          Thus,. both under the personal law and the statutory Jaw (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, not-
C   withstanding the fact that the minor children are living with the divorced
    wife.

          Thus, our answer to the question posed in the earlier part of the
    opinion is that the children of muslim parents are entitled to claim main-
    tenance under Section 125 Cr.P .C. for the period till they attain majority
D   or are able to maintain themselves, whichever is earlier and in 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.
E   In other words Section 3(1)(b) of the 1986 Act does not in any way affect
    the rights of the minor children of divorced muslim parents to claim
    maintenance from their father under Section 125 Cr.P.C. till they attain
    majority or are able to maintain themselves, or in the case of females, till
    they are married.

p         It, therefore, follows that the learned Trial Court was perfectly right
    in directing the payment of amount to maintenance to each of the three
    children as per the order dated 19.1.1993 and the learned 2nd Additional
    Session Judge also committed no error in dismissing the revision petition
    filed by the respondent. The High Court, on the other hand, fell in
G   complete error in holding that the right to claim maintenance of the
    children under Section 125 Cr.P.C. was taken away and superseded by
    Section 3(1)(b) of the 1986 Act and that maintenance was payable to the
    minor children of_Muslim parents only for a period of two years from the
    date of the birth of the child concerned notwithstanding the provisions of
    Section 125 Cr.P.C. The order of the High Court cannot, therefore, be
H   sustained. It is accordingly set aside. The order of the Trial Court and the
                                                      •

       NOORSABA KHATOON v. MOHD. QUASIM [DR. ANAND, J.]                  139

Revisional Court is restored. This appeal succeeds and is allowed but A
without any orders as to cost.

      The arrears of maintenance in respect of the children shall be paid
by the respondent to the appellant-mother, who filed the petition on their
behalf, within one year from the date of this order in four equal instal-
ments, payable quarterly. The first instalment shall be paid on or before       B
August 15, 1997 and thereafter every three months. Any single d(lfault in
the payment of the arrears will entitle the appellant to recover the entire
balance amount at once with 12% interest through the Trial Court in the
manner prescribed by the Code. The respondent shall continue to pay
maintenance as directed by the trial court, till the children attain majority   C
or are able to maintain themsel~es and in the case of the daughters, till
they get marred.

N.A.                                                        Apptal allowed.