Noor Saba Khatoon vs. Mohd. Quasim (1997)

This article is written by Shreya Saxena. This article provides an insight into the judgement rendered by the honourable Supreme Court in Noor Saba Khatoon vs. Mohd. Qasim. It comprehensively analyses the facts, issues involved, arguments advanced and observations of the Supreme Court in detail. 

Chapter IX of the Code of Criminal Procedure, 1973 provides for an effective and expedient remedy against individuals who neglect to maintain their dependents, thereby saving them from a life of destitution, starvation and vagrancy. The provisions contained in Sections 125 128 of the Criminal Code are universally applicable, irrespective of the personal law of the parties involved. 

The Muslim Personal Law (Shariat) Application Act, 1937, governs all Muslims in India. This law addresses marriage, divorce, inheritance, succession, etc. among Muslims and acknowledges that Muslim personal law (Shariat) will always prevail where the parties involved are Muslim. Centred around the issue of the grant of maintenance to Muslim children, the present case resolves the conundrum between adherence to Muslim personal texts vis- a-vis right to maintenance under Section 125 of the Criminal Procedure Code, 1973 available to wives, children and parents. The case of Noor Saba Khatoon vs. Mohd. Quasim (1997) addresses the issue of whether the children born to Muslim parents are entitled to maintenance under Section 125 of the Code of Criminal Procedure for the period of time until they reach majority or until they can support themselves, and for girls, until they get married, or whether their rights are restricted under Section 3(1)(b) of the Muslim Women (Protection of Right on Divorce) Act, 1986, that grants maintenance only up to two years from the birth of the child. This article involves a discourse on Muslim Personal law and the constitutionally mandated Section 125 of the Code of Criminal Procedure, 1973, juxtaposing the two and examining their relevance in ameliorating the economic position of abandoned muslim children.

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Date of Judgement: 29 July 1997

Court: Supreme Court of India

Case Type: Criminal Appeal for Maintenance

Appellant: Noor Saba Khatoon

Respondent: Mohd. Quasim

Bench: Justice A.S. Anand, Justice K.Venkataswami

Statutes Referred: Section 125 of the Code of Criminal Procedure, 1973 and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Supreme Court in Mohd. Ahmed Khan vs. Shah Bano Begum (1985), while safeguarding the rights of Muslim married women, held that they were entitled to maintenance beyond the period of iddat. However, this did not go down well with the Muslim clerics, who accused the court of proselytising Indian Muslims, which led to widespread protests. In order to appease the enraged Muslim orthodoxy, the ruling government at the time brought in the Muslim Women (Protection of Rights on Divorce) Act, 1986, diluting the Shah Bano judgement and codifying Muslim personal law. This law forms the basis of the present case.

Section 3(1)(b) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 stipulates that a woman is entitled to additional maintenance for her children up to a period of two years from the children’s date of birth. Whether or not children will be eligible for maintenance after the age of two is the moot question in the present case. 

The Court of the Judicial Magistrate, First Class, Gopalganj observed that the respondent had disregarded his obligation to support his wife and children and directed, vide order dated January 19, 1993:

  1. A grant of maintenance of Rs. 200/- per month  to the wife and
  2. A grant of maintenance of Rs. 150/- per month to each of their children. 

However, subsequent to this order, Mohammed Qasim divorced his wife and requested that the court adjust the maintenance amount in accordance with Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Judicial Magistrate modified the order, ruling that the wife would only get maintenance during the iddat period while the 1986 Act would have no bearing whatsoever on the amount of maintenance granted for the children under Section 125 of the Code of Criminal Procedure, which was left untouched. Aggrieved with the decision of the trial court, the respondent moved a revision petition before the court of the 2nd Additional Judge, Gopalganj, which was dismissed on the ground that the 1986 Act could not override provision of maintenance under Section 125 of the Code of Criminal Procedure. 

Thereupon, the respondent filed a criminal miscellaneous petition before the High Court challenging the order of the revisional court. The single judge bench of the Patna High Court held that the children were not entitled to maintenance under Section 125, Code of Criminal Procedure and maintenance could be granted for a period of two years only from their date of birth under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Accordingly, only the baby girl, who was just 1 ½ years old, was held to be entitled to maintenance until the age of two, while the other two children were declared ineligible.

The appellant, Noor Saba Khatoon, and the respondent, Mohd. Qasim, were married on 27th October 1980. They had three children from the wedlock- two daughters and one son, aged 6 years, 3 years, and 1.5 years, respectively. Over some matrimonial issues, the respondent husband expelled the appellant wife and their children from the matrimonial home and refused to provide them maintenance. He subsequently married another woman, Ms. Shahnawaz Begum, and continued to live with her.

The appellant wife, fearing destitution, filed a petition under Section 125 of the Code of Criminal Procedure, 1973, seeking maintenance for herself at Rs. 400/- per month and for the children to the tune of Rs. 300/- per child. The trial court found the respondent negligent in providing maintenance and ordered him to pay a monthly sum to the appellant and each child until they reached the age of majority. The court ordered the respondent husband to pay a sum of Rs. 200/- as maintenance towards the wife and Rs. 150/- as maintenance towards each of the children. However, the respondent divorced the appellant and applied to modify the maintenance order, citing the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court modified the maintenance order, limiting the appellant’s maintenance to the period of ‘Iddat‘ following her divorce, but retained the order regarding maintenance for the children. Muslim women are expected to maintain the period of iddat, or chastity, after being separated from their husbands, either through divorce or  upon the husband’s death. She is only permitted to remarry upon the culmination of such a period, usually three months. 

The respondent’s attempt to challenge this decision through a revision petition was dismissed by the Court of the 2nd Additional Judge, Gopalganj. The court held that the provisions of the 1986 Act could not override the mandate of Section 125 of the Code of Criminal Procedure. The respondent then filed a petition under Section 482 of the Code of Criminal Procedure before the High Court, challenging the maintenance granted to the children under Section 125 of the Code of Criminal Procedure.

The High Court observed in favour of the respondent husband, stating that the children were not entitled to maintenance under Section 125, Code of Criminal Procedure, beyond two years from their respective dates of birth, as per the Muslim Women (Protection of Rights on Divorce) Act, 1986. It further noted that the older two children had already completed two years at the time of the maintenance petition, and thus were not entitled to maintenance under the 1986 Act. Only the third child, who was 1½ years old, was entitled to maintenance until she turned two. The appellant, aggrieved by the decision of the Patna High Court, appealed by way of Special Leave before the Supreme Court.

Whether the provisions pertaining to the maintenance of Muslim children under Section (3)(1)(b) of Muslim Women (Protection of Rights on Divorce) Act, 1986, prevail over provisions for the grant of maintenance to children under Section 125  of the Criminal Procedure Code, 1973?

Appellant

The appellant wife claimed that she had no means to maintain the children or herself. She alleged that the respondent husband was engaged in a business of selling electrical appliances and owned certain agricultural land. She claimed that despite having sufficient income and being a man of means, the respondent husband neglected to maintain her and their children, and hence she was compelled to approach the court by way of an application under Section 125 of the Code of Criminal Procedure, 1973.

She claimed maintenance of Rs. 400/- per month for herself, while claiming Rs. 300/- per month for each of the children aged six, three and one and a half years, respectively.

Respondent  

The respondent husband contended that an application under Section 125, Code of Criminal Procedure, was not sustainable since the parties involved were Muslims and were governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986- to the exclusion of Section 125, Code of Criminal Procedure. He also claimed that since Section 3(1)(b) of the 1986 Act provided for payment of maintenance until two years after the birth of the child, he was not obliged to maintain the children and the wife after the expiry of the two year period.

The Constitution of India

Article15(3): Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

The Article provides that the State shall not discriminate between its citizens solely on the basis of religion, race, caste, sex, place of birth or any of them. However, Clause (3) provides that nothing contained herein shall affect formulation of any special laws for the welfare of women and children.

Article 39: Certain principles of policy to be followed by the state

The Article provides certain guidelines, upon which the State may base its policies while ensuring that: 

  1. all citizens, male and female equally, have the right to a sufficient means of subsistence;
  2. ownership and control of the community’s material resources are distributed in a way that best serves the common good; 

c. the functioning of the economic system does not lead to the concentration of wealth and means of production to the detriment of all; 

d. equal pay for equal work for both men and women; 

e. workers’ health and strength, as well as the young age of children, are not abused, and citizens are not coerced due to economic necessity to take up vocations which are hazardous to their strength and age;

f. adequate opportunities and facilities are made available to children to grow in a healthy and dignified manner while ensuring that their childhood and youth are protected against moral and material abandonment. 

The Code of Criminal Procedure, 1973

Section 125: Order for maintenance of wives, children and parents.

Section 125 of the Code of Criminal Procedure was enacted as a tool to fight the vagrancy and destitution faced by dependents due to non- payment of maintenance. Each sub- Section deals with a specific dimension of maintenance- 

Sub-Section (1) of Section 125 provides for the essentials that must be met to invoke Section 125. It states that when dependents like the wife, legitimate or illegitimate minor child, legitimate or illegitimate child suffering from abnormality (physical or mental) or parents of any person are unable to maintain themselves and the person having the responsibility to maintain them has sufficient means but refuses or neglects to maintain them, then upon application made to Judicial Magistrate First Class (JMFC), monthly allowance may be fixed by him.

Further, first proviso to Section 125 deals with a scenario where a maintenance order till majority can be awarded in favour of a married minor daughter. The second proviso to Section 125 provides for payment of interim maintenance to a wife, child, father or mother as fixed by the Judicial Magistrate First Class.  The third proviso to Section 125 aims at speedy disposal of applications for interim maintenance within 60 days from the date of service of such applications.

Explanation to Section 125(1) provides that a divorced woman who has not remarried is also considered a wife within this Section. Therefore, such a woman is also entitled to grant of maintenance under Section 125. It also defines a “minor” as an individual not considered an adult under the Indian Majority Act, 1875.

Sub- Section (2) of Section 125 provides for the date from which maintenance or interim maintenance is payable. As a general rule, it is payable from the date of order but it can be made payable from the date on which the application was filed by a specific order of the Judicial Magistrate First Class.

Sub- Section (3) of Section 125 lays out the consequences of non-compliance with the maintenance order. In case of breach to pay the maintenance without any sufficient cause, a warrant is issued by the Judicial Magistrate First Class for levying the amount and can also be sentenced to imprisonment for a maximum period of one month for the unpaid amount. Proviso to this sub- section prescribes a limitation period of one year from the due date, for the purpose of preferring an application to levy the maintenance amount. The second proviso to Section 125(3) states that the Judicial Magistrate First Class may order maintenance despite the refusal of the wife to live with her husband if there is a justified ground for such refusal. A second marriage or keeping a mistress is considered a just reason for refusing to live with the husband.

Sub-Section (4) to Section 125 provides for three grounds that would defeat a wife’s right to maintenance:- 

  • Firstly, if it is proved that she is living in adultery, her right to maintenance shall be defeated. It is necessary that she be living in adultery and an isolated act of adultery is not sufficient to defeat this right. 
  • Secondly, if she refuses to live with her husband without any sufficient reason. 
  • Lastly, if a husband and wife have been living separately by mutual consent.

Sub- Section (5) to Section 125 provides for subsequent cancellation of maintenance order if any of the grounds provided under sub Section (4) is proved.

The Muslim Women (Protection of Rights on Divorce) Act, 1986

Section 3: Mahr or other properties of Muslim woman to be given to her at the time of divorce

  1.  Despite the provisions of any other prevailing law, a divorced Muslim woman shall have the right to the following:
  1. Receive reasonable and fair provision and maintenance from her former husband during the iddat period.
  2. If she is the primary caregiver for children born before or after the divorce, receive reasonable and fair maintenance from her former husband for a period of two years from the dates of birth of such children.
  3. Obtain an amount equivalent to the mahr or dower agreed upon at the time of marriage or subsequently, as per Muslim law.
  4. Retain all properties given to her before, during, or after marriage by her family, friends, husband, or relatives of the husband.
  1. If a divorced woman has not received a fair maintenance, the agreed mahr or dower, or the properties mentioned in clause (d) of Sub- section (1) upon divorce, she or a duly authorised representative on her behalf may apply to a Magistrate for an order for the payment of such maintenance, mahr or dower, or the transfer of properties.
  2. Upon receiving an application under Sub- section (2) from a divorced woman, the Magistrate may, upon being satisfied that:
  1. If the divorced woman’s husband, who is financially capable, fails or neglects to provide a reasonable and fair maintenance for her and the children within the iddat period, or
  2. If the amount equivalent to the mahr or dower has not been paid, or if the properties mentioned in clause (d) of Sub- section (1) have not been transferred to her, the Magistrate may, within one month of the filing date of the application, issue an order directing the former husband to provide such reasonable and fair maintenance as deemed appropriate. This consideration is based on the divorced woman’s needs, the standard of living she enjoyed during the marriage, and the former husband’s financial means. Similarly, for the payment of mahr or dower, or the transfer of the mentioned properties, the Magistrate may issue appropriate directives to ensure that the divorced woman’s rights are upheld. However, if the Magistrate finds it impractical to resolve the application within the specified period, they may extend the duration for reasons recorded.
  3. If the individual against whom the order is issued fails, without a valid reason, to comply with the directive, the Magistrate may issue a warrant to recover the outstanding maintenance or mahr/dower amount. The Court process shall adhere to the procedures outlined in the Code of Criminal Procedure, 1973. Furthermore, the Magistrate may impose a sentence of imprisonment for up to one year, or until the outstanding amount is paid, following a fair hearing and in accordance with the provisions of the aforementioned Code.

The division bench of the Supreme Court, in order to comprehensively address the issue regarding the maintenance of Muslim children, sought to examine the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Court noted that the Preamble of the Act seeks to protect the rights of divorced Muslim women and provides for matters ancillary thereto. It further noted that the Act was brought about in succession to the verdict of the Apex Court in the case of Mohd. Ahmed Khan vs. Shah Bano (1985) and was restricted to the cause of maintenance for Muslim wives after divorce. It had no bearing whatsoever upon the maintenance of Muslim children, which continued to fall within the ambit of Section 125, Code of Criminal Procedure. 

It was obsered that a plain reading of Section 3 of the 1986 Act reveals that it concerns itself with ‘Mahr’ or other properties to which a Muslim woman shall be entitled upon divorce. The bench observed that the primary objective of the Section was to ensure the provision of a reasonable and fair amount to the wife as maintenance during the period of iddat. The bench observed that clause (b) of Section 3(1) must also be read in the same vein, as a provision of extra maintenance for the wife during the two- year fosterage period beginning from the date of birth of the child.

The decision clarified that maintenance for the two- year period was meant for the divorced mother “on her own behalf” as an additional amount meant for her “nourishment” while nursing the newborn child. However, this does not affect the absolute obligation of a father to maintain his children under Section 125, Code of Criminal Procedure. The provision casts a duty upon the father, irrespective of religion, to provide for the children until they become financially independent or attain majority. 

The Court observed that if the 1986 Act were allowed precedence over provisions for maintenance under Section 125 of the Code of Criminal Procedure, it would have disastrous, inequitable and unfair consequences for ousting the Muslim children from the purview of the beneficial legislation. The right of Muslim children to receive maintenance from their father was recognised as an absolute right, independent from the right of their mother to claim maintenance for a period of two years after bearing a child. This right vested with the children until they attained majority, became capable of maintaining themselves or in the case of girls, got married. Indeed, Section 3 of the 1986 Act begins with a ‘non obstante clause’ that provides that, notwithstanding any other law, the provisions of the 1986 Act shall prevail. However, the non obstante clause only applies to and restricts the right of the divorced wife to claim maintenance and has nothing to do with the children’s independent rights in that regard. Not only the statutory law but even the Muslim Personal Law recognises the rights of minor children to be maintained by the father, known as Nafaqa. Hence, there is no dichotomy between the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125  of the Code of Criminal Procedure, 1973- rather, both operate concomitantly within different domains.

Accordingly, the Supreme Court held that the High Court’s decision could not be sustained. Reinstating the trial court’s decision, the bench directed the respondent husband to pay arrears of maintenance to the appellant wife, who  was entitled to receive it on part of the minor children- in four equal instalments. It was further provided that in the case of default, the appellant may pursue recovery of the entire amount at once, along with 12% interest, through the trial court in accordance with the Code of Criminal Procedure. The payment must be made until the children reach adulthood or become capable of maintaining themselves and for girls, until they get married. 

Rationale behind this judgement

In order to unravel the apparent dichotomy between the statutory law and Muslim personal law on the issue of maintenance of children, the Court set forth an inquiry to apprise itself of the law relating to Muslims in India. The Court relied upon excerpts from the Statute Law relating to Muslims in India (1995 Edition) by Tahir Mahmood, which evaluated the effect of Section 125, Code of Criminal Procedure upon the applicability of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Muslim personal law.

The text stated that despite the controversy stirred by the Shah Bano judgement and the subsequent enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 Act- there is nothing that prohibits the applicability of Section 125, Code of Criminal Procedure, 1973, to Muslim children and parents alike. The Code of Criminal Procedure adopts the age of minority from the Indian Majority Act, 1875, as reflected in Explanation to Section 125(1), meaning thereby that every Muslim child under the age of 18 years  can invoke the law to receive maintenance from his/her parents if despite having sufficient means, they neglect to maintain them. 

Granting maintenance is a measure of social justice recognised under Article 15(3) and reinforced under Article 39  of the Constitution of India. It is a fundamental duty of a man to maintain his wife, aged parents and children, so long as they are unable to maintain themselves. This section seeks to analyse the law of maintenance as dealt with under the Muslim Personal Law, the  Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 of the Code of Criminal Procedure, 1973 as follows:

Muslim Personal Law

Muslim personal law is founded on the principles of the Holy Quran, as laid down by Prophet Mohammed  and expounded by Muslim scholars, jurists and commentators. As per Muslim Personal Law, Nafaqa or maintenance, has been said to be the birthright of children and an absolute obligation upon the father. In fact, Muslim personal law attaches great religious virtue to the act of maintaining the daughter and states that one who spends his wealth on the upbringing of the daughter shall be closer to the Prophet on the Day of Judgement. Hence, 

  • The father is under a duty to maintain the daughters until they are bakira (unmarried) or where they are thayiba –dowagers or divorcees, until they get remarried. 
  • Likewise, the father is under an obligation to maintain the sons until they attain puberty (bulugh) or as long as necessary in cases where the son is indigent or physically handicapped. 

If the father is unable to maintain the children, owing to his financial situation and the mother is affluent- then she shall maintain the children, subject to reimbursement  by the husband when his condition improves.

Mohammedan law, however, stays silent on the aspect of maintenance for illegitimate children. By virtue of being born out of an illicit connection (Zina), personal law ascribes to the notion that such a child, being fillius nullius (nobody’s son) is not entitled to maintenance.

Therefore, an extensive analysis of the fundamentals of Muslim personal law reveals that the obligation to maintain children extends until they attain financial independence (for sons) and until marriage (for daughters). However, in both situations, such a time period is not limited to a period of two years and will continue far beyond it. Furthermore, such rights only accrue to legitimate children, while rights of illegitimate children who are considered a product of Zina (illicit connection) are not recognised.

Muslim Women (Protection of Rights on Divorce) Act, 1986

Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 contains a non obstante clause, which provides that “notwithstanding anything contained in any other law for the time being in force” a divorced woman has the right to claim maintenance from her husband in order to maintain children for a period of two years since the date of birth. However, as per the Court’s interpretation, the non obstante clause was confined to the right of the divorced wife. It solely pertains to the obligation of the former husband towards the divorced wife to maintain her and their children until two years after childbirth. Therefore, any expenses under Section 3(1)(b) are made on her behalf. It has no bearing on the right of the children to claim maintenance under Section 125, Code of Criminal Procedure, which exists independently.

Section 125 of Code of Criminal Procedure, 1973

The primary objective of Section 125 of the Code of Criminal Procedure, 1973, is to impart social justice by making a provision for the maintenance of wives, children and elderly parents, who are unable to support themselves, in order to prevent destitution and vagrancy as per the mandate of Article 15(3) of the Constitution of India. 

For the application of Section 125, certain essential conditions must be satisfied. These are:

  1. Sufficient means to maintain: This means that the individual from whom such maintenance is claimed must be capable of financially providing for the dependent(s). This is not just limited to the monetary resources at hand, but also relates to the individual’s earning capacity. Various decisions of the Supreme Court and High Courts have further safeguarded this right to be maintained, by establishing that irrespective of whether a man is employed or not, if he is able bodied, he has a sacrosanct duty towards his wife and children, to maintain them.
  2. Neglect or refusal to maintain: For the application of this provision, it must be proved that the person who is obliged to maintain the claimant(s), has neglected or refused to do so despite having sufficient means.
  3. Lastly, the claimant(s) must be unable to maintain themselves.

Section 125 is intelligently crafted beneficial legislation that takes into account the status of the provider (husband/ father/ son) and the strata to which the parties belong, in order to fix a monthly sum to maintain his dependents. The idea is to not just fulfil basic animalistic needs, but to lead a life of dignity, in a similar manner as they would in the presence of the provider. This provision was brought about to ameliorate the financial suffering of women and children of broken marriages, so as to not leave them at the mercy of others for meeting basic necessities of life. Section 125(1) clause (b) provides that a father is under an obligation to maintain his minor children, whether illegitimate or legitimate, if they are unable to maintain themselves. Clause (c) further extends this benefit to cases where the child, though not a minor- is unable to maintain themselves, due to a mental or physical injury. Even if the custody of the child is with another person other than the father, this does not exempt him from the responsibility to pay timely maintenance. 

There is a long history of decisions that have tried to establish the true position of statutory law for maintenance envisaged in Sections 125-128 Code of Criminal Procedure vis a vis Muslim Personal Law.  In the Shah Bano case, the Supreme Court, while examining the applicability of Section 125, Code of Criminal Procedure, held that Mahr is an amount payable as consideration for the marriage and does not have any bearing on the maintenance to which a wife becomes eligible upon divorce. Thereby holding that Section 125, Code of Criminal Procedure is welfare legislation available to Muslim women as well. In response to the above, 1986 Act was enacted, which restricted the amount to that of mahr and the period during which maintenance could be claimed to that of iddat. Later in Danial Latifi vs. Union of India (2001), the Supreme Court ruled that husbands were liable to provide maintenance beyond the period of iddat until the wife remarried. In present times, though the rights of divorced Muslim women are governed by the 1986 Act, the spouses can opt to be governed by Section 125 of the Code of  Criminal Procedure, 1973 as well. 

In conclusion, a careful reading of the above provisions reveals that there is no conflict between the two sections since both pertain to different situations. The 1986 Act deals with the payment of maintenance to the wife for two years of fosterage, while Section 125, Code of Criminal Procedure pertains to a Muslim father’s absolute obligation to maintain his minor/ dependent children. It has been previously held in Hazi Farzand Ali vs. Mst. Noorjahan (1988) by the Rajasthan High Court while determining the relationship between the 1986 Act and Section 125 of the Code of Criminal Procedure, that Section 7 of the 1986 Act is a transitional provision that is limited in its applicability to a maintenance application made by a divorced Muslim woman under Section 125, Code of Criminal Procedure.  However, the same has no bearing whatsoever on the application moved by children unable to maintain themselves.

The juxtaposition of Muslim Personal Law, the 1986 Act and Section 125 of the Code of Criminal Procedure reveals that maintenance under Muslim Personal Law pertains only to legitimate children from marriages recognised in Islam. The Hanafi school recognises the right of illegitimate children to claim maintenance from the mother, to the exclusion of the father, only until the age of seven. The Shia school does not recognise any such rights. It does not safeguard the rights of illegitimate Muslim children, thereby exposing them to the perils of vagrancy and destitution. 

Therefore, the need for a secular provision safeguarding their rights is imminent. The scope of Section 125 of the Code of Criminal Procedure, 1973, has been sufficiently dealt with earlier. Regarding the rights of child, clauses (b) and (c) of subsection (1) of Section 125 bestow an independent right upon them to claim maintenance, as a separate entity from their mother, who may have their custody.  In the case of Sukha v. Ninni (1965),  it was held that the provision of maintenance to an illegitimate child, on which the Mohammedan Law is silent, will not have the effect of defeating any law in force. Rather, such statutory recognition under Section 125, Code of Criminal Procedure shall ensure that these children are not faced with the misfortune of destitution and vagrancy. Section 125 is a secular enactment with greater scope of applicability in contrast to personal laws, which extends to living in relationships as well. Section 125 is based on paternity of the child and extends its protective umbrella irrespective of whether the child is natural- born or adopted; legitimate or illegitimate. 

The Apex Court observed that the High Court had fallen into error in holding that Section 3(1)(b) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 would override provision of maintenance under Section 125 of the Code of Criminal Procedure, 1973. It was observed that the decision of the trial court, which was confirmed by the revisional court, was indeed the correct position in law, granting maintenance to each of the three kids until majority.

A perusal of the present case leads us to the following key takeaways:

  • According to Muslim personal law as well as statutory laws prevailing within India, a Muslim father is under an absolute obligation to maintain his children. 
  • This bounden duty shall continue until the children attain majority or are capable of supporting themselves, or, in the case of a girl child- when she gets married.
  • Even if the children are under the custody of the mother, the obligation on the father to maintain them, still remains.
  • Maintenance provided under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is meant for the mother’s own nourishment, while taking care of the children until two years after bearing them. 
  • The provision under the 1986 Act is independent of the rights of the children to claim maintenance under Section 125 of the Code of Criminal Procedure. There is no conflict between the two.
  • Section 125, Code of Criminal Procedure is a beneficial legislation, which should not be undermined/ affected/ restricted unless explicitly provided by the statute.

In conclusion, Section 125 of the Code of Criminal Procedure imposes an absolute obligation upon the Muslim father, much like upon his Hindu counterpart-  to pay for the sustenance of his minor children, irrespective of the religion they follow and in consonance with its objective of preventing the destitution and vagrancy of minor children born from broken marriages. It brings a sense of uniformity to the law regarding maintenance, thereby reducing the scope for ambiguity and streamlining the process for expeditious maintenance grants. Additionally, it also fills up the lacunae existing under the Muslim Personal Law, unjustly debarring an illegitimate Muslim child from his/her right to maintenance and exposing them to vagrancy and destitution.

Whether illegitimate Muslim children have a right to maintenance?

Muslim personal law is largely silent on the aspect of maintenance for illegitimate children. Under the Shia school, illegitimate children are not recognised and, hence, do not have a right to claim maintenance. Hanafi school, on the other hand, permits illegitimate children to claim maintenance, albeit in a restricted sense- until the age of seven years from the mother only. In recognition of such lapses, the provisions of maintenance under the Code of Criminal Procedure, 1973, have been enacted to safeguard such children, who may otherwise be relegated to the sidelines and be compelled to lead a vagrant life.

Whether Section 3(1)(b) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 is in conflict with Section 125, Code of Criminal Procedure, 1973?

No, both provisions are independent of each other. While Section 125, Code of Criminal Procedure is a secular law that provides for the maintenance of children, among others; Section 3(1)(b) of the 1986 Act is a codified personal law dealing exclusively with divorced Muslim women. The mention of ‘children’ under clause (b) is merely incidental, since the clause essentially deals with the claims of the estranged wife for her nourishment post child birth.

  1. https://blog.ipleaders.in/aspects-of-maintenance-of-children-under-muslim-law/
  2. https://main.sci.gov.in/jonew/judis/13891.pdf 
  3. https://thewire.in/law/unmarried-hindu-daughter-maintenance-father-supreme-court
  4. https://www.shethepeople.tv/home-top-video/judiciary-muslim-rights-women-rights/
  5. https://blog.ipleaders.in/right-maintenance-muslim-women-2/



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