Gaffur vs Smt. Salma and Others

R.P. Awasthy, J.—The present petition filed u/s 482 Code of Criminal Procedure has been directed against the concurrent orders passed against the present Petitioner, by the two Courts below to pay maintenance allowance at the monthly rate of Rs. 150/- from the Month of March, 1986 till they attain majority.

Facts of the case arc that the present non-applicants filed the petition u/s 125 of the Code of Criminal Procedure against the present Petitioner for granting maintenance allowance on the ground that the present non-applicant No. 1 was married to the present applicant about nine years prior to filing of the said petition. Out of the said wed-lock non-applicants No. 2 and 3 were born to her. It was further mentioned in the said petition that after keeping the present non-applicant No. 1 properly for a period of one year and a half, the non-applicant started subjecting her to cruelty. The present Petitioner was residing with his elder brother Sattar and his wife Sajobai who both used to beat the non-applicant No. 1 as well as her two minor daughters of very lender age. Ultimately about six years prior to filing of the petition, the Petitioner outstep her from their house after beating her. Seven months after her outster, she again went alongwith their children to the house of the present applicant but he did not permit her to enter his house. The sister-in-law of the non-applicant Sajobai lifted the Petitioner No. 3 Miss Nagma and threw her on the ground on account of which the Petitioner No. 3 Miss Nagma sustained fracture of her left femur.

Inspite of it the non-applicant No. 1 still tried to live with the Petitioner and used to visit his house. But, the Petitioner and his brother and sister-in-law did not permit her to live with them.

Thus, inspite of having sufficient means to maintain the Petitioners, the present Petitioner refused or at least neglected to maintain them. On the basis of the said pleadings the present non-applicants claimed maintenance allowance at the monthly rate of Rs. 350/- for the Petitioner No. 1 and 200/- each for the present non-applicants No. 2 and 3.

The present Petitioner denied the said allegations and submitted that he had already divorced the non-applicant No. 1 many years before the filing of the petition and has paid maintenance allowance at the rate of Rs. 200/- permensum to the Petitioner No. 1 for 4 months after the said divorce that is for "iddat" period. Consequently, the said petition was not tenable and was liable to be rejected on this ground alone.

Parties to the petition did not exercise their option u/s 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act of 1986 in short).

Both the Courts below held that the present Petitioner, having sufficient means to maintain, had refused to maintain the non-applicants No. 2 and 3 and that they were living with the present non-applicant No. 1 who had no means to maintain them. The said Courts further held that the provisions contained in the Act of 1986 do not create any bar so far it relates to maintenance u/s 125 Code of Criminal Procedure of minor children of divorced Muslim Women.

It has been argued for the present Petitioner that the two Courts below held that there was no decision of the High Court of M.P. regarding the aspect that a Muslim father would not be liable to maintain his children above two years of age, on divorcing his wife. However, there is a direct authority now available which is reported in 1994 M.P.L.J. 701 (Noorunisa v. Maqsood Adhmad), which categorically lays down that under the given circumstances a Muslim father would not be liable to maintain his child/children of the age of more than two years.

In reply, it has been argued that there is absolutely no provision under any of the section of the Act of 1986, which lays down that a Muslim father would not be liable to maintain u/s 125, Code of Criminal Procedure his minor children. If such a view of law is taken as has been taken in the cited authority, it may lead to a situation, which would be simply absurd which could not have been the intention or even the contemplation of the legislation.

In the relevant Act of 1986, the said provision has been made u/s 3(1)(b), the heading of which is as below:

Mehar or other properties of Muslim Women to he given to her at the time of divorce.

In my opinion by reading the said provision it appears that an additional protection has been provided by enacting the provision contained in Sub-section 1 of Section 3 of the said Act, 1986 for maintenance of the children of the divorced wife by the husband. The said Act no where takes away the right of the children who are laible to be maintained by their father, if he has sufficient means to maintain them, under the general law contained in Section 125 of the Code of Criminal Procedure

With great respect 1 may submit that in the authority reported in 1994 M.P.L.J. 701 (Noorunnisa and Anr. v. Maqsood Ahmad), this situation could not be considered.

It has also to be seen that the said Act relates only to Muslim Women who have been divorced. If such an interpretation as has been accepted in 1994 M.P.L.J. 701 (Noorunnisa and Anr. v. Maqsood Ahmad) is adopted, it may lead to an anomaly which may be quite absurd or incongruous. The Act of 1986 relates to a Muslim Woman who has been married according to the Muslim Law and has been divorced or has obtained divorce from her husband, in accordance with law. Thus, it requires that the Muslim Women should invariably be a validly married wife. Consequently, a legitimate child above the age of two years of such a Muslim father, if such an interpretation is applied, would not be entitled for being maintained. But a Muslim father would still be liable to maintain his illegitimate children u/s 125 of the Code of Criminal Procedure, till such children attain majority.

I am in agreement with the view expressed by Hon''ble S.K. Homchaudhri, J. in the authority cited in 1990 Cri L.J. 391 in which authority, it has been observed as below:

Section 125, Code of Criminal Procedure provides for maintenance of both legitimate or illegitimate minor child/children by the parents. There is nothing in Section 125, Code of Criminal Procedure which exempts muslim parents from maintenance of illegitimate minor child/children. When u/s 125, Code of Criminal Procedure an order for maintenance of illegitimate minor child/children can be passed against the muslim father, it cannot be reasonably held that a muslim lather is not liable to be ordered to maintain his legitimate minor child/children above two years old under the provisions of Section 125, Code of Criminal Procedure after he has divorced his wife through whom the child/children is/are born. Proper maintenance of child is imperative. In the paramount interest of the child, laws compelling a parent to maintain his child/children are to be construed liberally so as to embrace all beneficial legislation in favour of the child. From the plain reading of the provisions of Act 125 of 1986, it is clear that provisions of Sub-section (1) (b) of Section 3 providing reasonable and fair provision of maintenance of minor child to be made and paid to the divorced muslim women by her former husband for a period of two years from the date of birth of the child/children is a right of muslim divorced women and is incidental to the divorce and the said provision, in no way comes in conflict with the provisions of Section 125, Code of Criminal Procedure providing maintenance of minor child/children. As such, order for maintenance of minor child/children above two years can be passed against a muslim lather after he has divorced his wife, if the divorced wife is unable to maintain the child/children above two years who is/are living with her." With respect I may submit that the said observations are elaborate and self speaking, not needing any further comments.

Consequently, with great respect I am unable to agree with the principle of law laid down in 1994 MPLJ 701 (Noorunnisa and Anr. v. Maqsood Ahmad). It is, therefore, ordered that the Additional Registrar (Judicial) shall place the record of the present case before My Lord Hon''ble the Chief Justice, so that His Lordship may be pleased to refer the following question to a Larger Bench:

(1) Whether a Muslim father is not liable to maintain; u/s 125 of Code of Criminal Procedure, his legitimate minor child/children above two years of age after he has divorced his wife through whom child/children is/are born, if the divorced wife is unable to maintain the child/children above two years who is/are living with her ?