BEFORE THE SUPREME COURT OF INDIA
DATE OF JUDGMENT
Noor Saba Khatoon
Dr. A.S. Anand and K. Venkataswami, JJ.
FACTS OF THE CASE
The appellant (wife) and the respondent (husband) were wedded since 27-10-1980. They has three children out of the wedlock (two daughters and a son). When the respondent asked the appellant along with the three children to leave the matrimonial house, the children were aged 6 years, 3 years and l 1/2 years.
On date 13-2-1992, the appellant filed an application under Section 125[i], Cr. P.C, in the Trial Court seeking maintenance from her husband claiming a sum of Rs. 400/per month for herself and Rs. 300/per month as maintenance for each of the three children. The Trial Court granted the maintenance. On date 19-1-1993, the 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.
The respondent then divorced the appellant and filed an application in the Trial Court seeking modification of the order dated 19-1-1993, in view of the section 3(1)(b)[ii] of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
By an order dated 27-71993, the Trial Court held that abiding with 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 right to maintenance under Section 125. Cr. P.C. insofar as the children were 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. While the revisional court did not interfere in the impugned judgment, the respondent yet again went to High Court.
The High Court according to section 3(1)(b) of the 1986 Act, held that only the child who was 1and 1/2 years of age then would be eligible for maintenance till she attain age of two years.
Thus, the appellant-wife then filed a special leave petition on the Supreme Court.
ISSUE OF THE CASE
Whether the children of the Muslim parents were entitled to grant of maintenance under Section 125, Cr.P.C. or under Section 3(1)(b) of the 1986 Act ?
Section 125 of Criminal Procedure Code, 1973. (Herein Cr. P. C.).
Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. (Herein 1986 Act).
ARGUMENTS OF THE COURT
The bench argued that section 125 of Cr. P. C. is applicable on all the cases of maintenance where the child (or children) are unable to maintain themselves; and the father is capable of providing maintenance irrespective of his religion. This section is not affected by section 3(1)(b) of 1986 Act. The intention of section 3(1)(b) is not to take away the independent rights of muslim children of claiming maintenance under section 125 of Cr. P. C.
The court said, “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 2 years from the date of birth of the concerned child under Section 3(1) of the Act.”
The bench by giving appropriate instances explained that both the statutory as well as the personal muslim laws guide the father to maintain his children, him having sufficient means, notwithstanding the fact that the minor children are living their mother.
The court held the judgment of the High Court as not appropriate and misguiding. Judgments given by Trial court and the Revisional court were perfectly correct. Therefore, the order of the High Court was set aside by the present court.
The court at last passed a decree that states:
“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 installments, payable quarterly. The first installment shall be paid on or before August 15, 1997 and thereafter every three months. Any single default in the payment of the arrears will entitled 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 or are able to maintain themselves, and in the case of the daughters, till they get married.”
Criminal Procedure Code, 1973.
Muslim Women (Protection of Rights on Divorce) Act, 1986.
[i] Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
[ii] 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 dates of birth of such children;