IMPORTANT POINT
The children of muslim parents are entitled to claim maintenance u/s 125 Criminal Procedure Code, 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, and this right is not restricted, affected or controlled by divorcee wife s right to claim maintenance for maintaining the infants u/s 3(1)(b) of Muslim Women (Protection of Rights on Divorce) Act, 1986.

Headnote:(i) Muslim Law-Criminal Procedure Code, 1973-Section 125-Muslim Women (Protection of Rights on Divorce) Act, 1986-Section 3(1)(b)-Maintenance-Entitlement of children of muslim parents to grant of maintenance u/s 125-Does Section 3(1)(b) of the 1986 Act affect the rights of minor children of divorced muslim parents to grant of maintenance u/s 125 Cr.P.C.?-(No)-So long as conditions of Section 125 are satisfied, rights of minor children are not affected by Section 3(1)(b) of the 1986 Act-Absolute obligation of a father to maintain his children-Section 125 Cr.P.C. and Section 3(1)(b) of 1986 Act apply and cover different situations-No conflict between two provisions.
       Held : 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. Clause (b) of Section 3(1) (supra) provides for grant of additional maintenance to her 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 Clause (b) of Section 3(1) 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 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. 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 effect of a beneficial legislation like Section 125 Cr.P.C., cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 Cr.P.C. where they are minor and are unable to maintain themselves. 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. (Para 6)
       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 two 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 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 Section 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. In the case of female children this obligation extends till their marriage. Apart from the statutory 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. (Para 7)
       (ii) Criminal Procedure Code, 1973-Section 125-Muslim Women (Protection of Rights on Divorce) Act, 1986-Section 3(1)(b)-Provisions of Section 125 Cr.P.C. and Section 3(1)(b) of 1986 Act apply and cover different situation-No conflict between the two.
       Held : 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 two 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 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 Section 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. In the case of female children this obligation extends till their marriage. (Para 7)
       (iii) Muslim Personal Law-Maintenance-Right of minor children to receive maintenance from their father-Absolute obligation of a muslim father to maintain his minor children till they attain majority-In case of females till they get married.
       Held; both under the personal law and the statutory law (Section 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. (Para 9)

JUDGMENT

Dr. Anand, J.-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 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 alongwith the three children then aged 6 years, 3 years and 1-1/2 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 over-ride 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 childr

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1997 Supreme(SC) 1022

Cases Referred (1)