A divorced Muslim woman is entitled to maintenance for herself for the period of Iddat and for her children for a period of two years from their birth under the Muslim Women (Protection of Rights on Divorce) Act, 1986. However, the Act does not affect the rights of the children to claim maintenance under the Muslim Law or under the Code of Criminal Procedure. The father is bound to maintain his children and grandchildren till the time of weaning, and thereafter, if they are not possessed of property from which they can be maintained, the duty to maintain them falls on the mother, if the father is necessitous and the mother is not poor.

Headnote:
MAINTENANCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTION 3(1)(B) - INTERPRETATION - MAINTENANCE OF CHILDREN BORN BEFORE OR AFTER DIVORCE - PERIOD OF TWO YEARS - APPLICABILITY - HIZANAT OR CUSTODY OF MINOR CHILD UNDER MUSLIM LAW - RIGHT TO CUSTODY AND MAINTENANCE - FATHER'S LIABILITY TO MAINTAIN CHILDREN - SCOPE AND EFFECT.
Fact of the Case:

A divorced Muslim woman, Mst. Lalli, filed an application under Section 125 Cr. PC against her husband, Jamaluddin, for grant of maintenance allowance for herself and her two children. Jamaluddin contested the application, claiming that he had no source of income and that Mst. Lalli was a woman of disrepute. The Magistrate awarded Rs. 200/- p.m. as maintenance for the children till the final disposal of the petition.
Finding of the Court:

The court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 superseded all other laws made in regard to maintenance of divorced Muslim women. A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. However, the Act does not affect the rights of the children to claim maintenance under the Muslim Law or under the Code of Criminal Procedure. The father is bound to maintain his children and grandchildren till the time of weaning, and thereafter, if they are not possessed of property from which they can be maintained, the duty to maintain them falls on the mother, if the father is necessitous and the mother is not poor. The court further held that the mother is entitled to the Hizanat or personal custody of the daughter upto the age of puberty and the son upto the age of 7 years. Thereafter, she is entitled to keep the son with her till the father files a petition under the Guardian and Wards Act and obtains an appropriate order for the custody of the son.
Issues: 1. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 bars a divorced Muslim woman from claiming maintenance for her children under Section 125 Cr. PC? 2. Whether the father is liable to maintain his children even if they are not living with him?
Ratio Decidendi: 1. The Muslim Women (Protection of Rights on Divorce) Act, 1986 does not affect the rights of the children to claim maintenance under the Muslim Law or under the Code of Criminal Procedure. The prohibition in the Act is only against the divorced Muslim wife if she is claiming maintenance for herself subject of course to the period of Iddat, but she cannot be denied a right of maintenance claim on behalf of the children in the capacity of a lawful guardian or a person holding the custody of minor children in a lawful manner under the provisions of Shariat. 2. The father is bound to maintain his children and grandchildren till the time of weaning, and thereafter, if they are not possessed of property from which they can be maintained, the duty to maintain them falls on the mother, if the father is necessitous and the mother is not poor. There is no prohibition under the Muslim Personal Law or under the provisions of the Act of 1986 that the children, who are in the Hizanat or lawful custody of the divorced Muslim wife are not entitled to claim any maintenance from their father.
Final Decision: The petition under Section 482 Cr. PC was dismissed.

JUDGMENT

1. - A short but interesting question of law has arisen in this petition under Section 482 Cr. PC filed by Shri Jamaluddin. The controversy raised in the case has assumed a great importance in view of passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act).

2. The facts of the case in narrow compass are that the petitioner Jamaluddin was married to Mst. Lalli, non-petitioner and both are governed by Mahomedan Law. Smt. Lalli submitted an application on July 18, 1985 under Section 125 Cr. PC, against the petitioner for grant of maintenance allowance to herself and her two children. Out of two children, one is daughter aged 12 years and another is son aged 10 years. According to Mst. Lalli, the parties were married 20 years back and the afore-mentioned two children were born during the lawful wedlock between the parties. The attitude of the petitioner Jamaluddin was cruel towards her and she was turned out of their matrimonial home. Smt. Lalli thereafter, was maintaining herself and her children by borrowing and she had no means of livelihood. She also went to her in-laws house on July 5, 1985, in the village of petitioner Jamaluddin and to the Panchas for granting her maintenance but the husband declined to give any maintenance. It was further alleged that Jamaluddin had also married another girl, who was the daughter of Dina Teli. The income of Jamaluddin was nearly Rs. 2,000/- p.m.

3. Jamaluddin contested the above application and submitted that he had no source of income. He was dependent on his own parents. It was also alleged that Smt. Lalli was a woman of dis-repute and she had given birth to an illegitimate son and was leading her life by in-famous means. Jamaluddin though admitted that he had married with another woman but submitted that she had already died. The learned Munsif and Judicial Magistrate, Sawaimadhopur, by order dated October 21, 1986, took the view that Smt. Lalli had already been divorced by Talaq by Jamaluddin and under the provisions of the Act of 1986 she herself was not entitled to any maintenance. The learned Magistrate did not find any force in the contention of Jamaluddin that the son born to Mst. Lalli was illegitimate and further held that under Section 112 of the Evidence Act, there would be a presumption of legitimacy of child who was born during continuance of lawful wedlock. Jamaluddin would have to produce evidence in order to rebut the above presumption. Learned Magistrate also held that Mst. Lalli had shown the income of Jamaluddin as Rs. 2,000/- p.m. while Jamaluddin has taken the plea that he has no income, but this matter could only be decided after the evidence is led by the parties. The learned Magistrate, in these circumstances, thought it fit to award Rs. 200/- p.m. i.e. Rs. 100/- p.m. to each child for their maintenance till the final disposal of the petition filed under Section 125 Cr. PC. The above maintenance has been granted from April 1, 1986.

4. Aggrieved against the above order this petition has been filed under Section 482 Cr. PC. Mr. Gaffar Ali appearing on behalf of the petitioner Jamaluddin vehemently contended that the judgment of learned Magistrate was clearly against the provisions of the Act of 1986. It was submitted that under Section 3 (l) (b) a muslim woman was only entitled to the maintenance of her children for a period of two years from the respective dates of birth of such children. It was submitted that the Act of 1986 was passed in order to remove the doubts raised by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 and to reiterate the principles contained in the Muslim Personal Law. Section 3 started with non-obstante clause and clearly provided that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to such maintenance and other sums which have been provided in various sub-section and clauses of Section 3

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1987 Supreme(Raj) 794

RAJASTHAN HIGH COURTN.M.Kasliwal, J.Jamaluddin - AppellantVersusMst. Lalli - RespondentS.B. Criminal Misc. Application No. 338 of 1987.Decided On : 10-09-1987

Cases Referred (1)

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RAJASTHAN HIGH COURT
N.M.Kasliwal, J.
Jamaluddin - Appellant
Versus
Mst. Lalli - Respondent
S.B. Criminal Misc. Application No. 338 of 1987.
Decided On : 10-09-1987