Abdul Hamid vs Ku. Gazala Parveen

Ajit Singh, J.

This revision is directed against the order dated 12-5-1998 passed by the Judicial Magistrate, First Class, Rewa in M.J.C. No. 19/98 (old No. 9/97) whereby relief for grant of maintenance at the rate of Rs. 400/- per month from 8-2-1997 has been allowed in favour of respondent till she is married.

The respondent is daughter of petitioner. Her date of birth is 9-2-72 and she completed the age of 18 years on 8-2-1997. She filed an application u/s 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'') for grant of maintenance allowance after attaining majority on 8-2-1997 claiming that she was entitled for maintenance till she is married. The petitioner opposed the application on the ground that the day the respondent attained her age of majority, his liability to maintain her ceased u/s 125 of the Code. The Court below placing reliance on the decision of the Supreme Court in the case of Noor Saba Khatoon Vs. Mohd. Quasim, , held that the respondent was entitled for maintenance at the rate of Rs. 400/- p.m. from 5-8-1997 till she is married despite her attaining the age of majority. There is no dispute between the parties that petitioner has already paid maintenance to the respondent at the rate of Rs. 400/- per month upto 8-2-97.

The learned Counsel for the petitioner argued that Clause (b) of Section 125 of the Code applies to minor children and Clause (c) applies to children who have attained majority but who by reason of any physical or mental abnormality or injury are unable to maintain themselves and that neither Clause (b) nor Clause (c) entitles a major child, whether a son or daughter, to obtain maintenance from the father unless suffering from any physical or mental abnormality or injury and for that reason unable to maintain themselves. It is also submitted that in the present case the respondent for whom maintenance has been allowed is major and not suffering from any physical or mental abnormality or injury and, therefore, she is not entitled for maintenance after becoming major for any period thereafter.

Argument of the learned Counsel at the first sight appears plausible but the point is really concluded against him by the decision of the Supreme Court in the case of Noor Saba Khatoon (supra) where it has been held as follows :--

"10. Thus, both under the personal law and the statutory law (Section 125, Cr.PC) 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.

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 maintenance u/s 125, Cr.PC, 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 infant child/children in her custody for a period of two years from the date of birth of the child concerned u/s 3(1)(b) of the 1986 Act, 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 u/s 125, Cr.PC, till they attain majority or are able to maintain themselves, or in the case of females, till they are married."

(Emphasis supplied)

Further, the Supreme Court in the operative part of the order (para 13) allowed maintenance to the daughters, till they "get married". The entire proceedings which reached the Supreme Court were taken u/s 125 of the Code. In these circumstances, it is not possible for me in the High Court to ignore the judgment of the Supreme Court treating it to be per incuriam as contended by the learned Counsel for the petitioner.

The revision has no merit and is, therefore, dismissed but without any order as to costs.