Mohd. Kutubuddin vs Noore Nazar

M.S. Ratnaparkhi, J.—The order passed by the Judicial Magistrate, First Class, 6th Court, Akola on 18-10-1988 in Misc. Criminal Case No. 1361/87 enhancing the quantum of maintenance, has been challenged in this revision.

In order to appreciate the real controversy involved in the case, the statement of following facts would be necessary. One Zaheda Begum was married to Mohd. Kutubuddin (the present petitioner) some time in 1983 and their marital ties continued till 11-11-1987. During the continuance of the marital ties, the said Zaheda Begum gave birth to a female child Noore Nazar on 5-11-1984. This Zaheda Begum was divorced by Kutubuddin on 11-11-1987. Zaheda Begum and her daughter Noore Nazar filed an application before the Judicial Magistrate, First Class, Akola u/s 125 of Criminal Procedure Code for maintenance on the ground that Zaheda Begum was neglected or refused to be maintained by her husband and that she was driven away from the house. It was also alleged that she was unable to maintain herself and the child. This was vide Misc. Criminal Application No. 8/85. This claim was opposed by the husband. He denied that he refused and/or neglected to maintain the wife and the child. He alleged that his wife withdrew from his society without any reasonable and sufficient cause and hence they were not entitled to maintenance. The trial went on before the Magistrate and by his order dated 30-10-1988 the Magistrate held that the wife was unable to maintain herself. He negatived the case of the wife that she was ever ill treated and neglected and refused to be maintained by her. He recorded a positive finding that the wife withdrawn from the society of her husband without any reasonable and sufficient cause. On these findings, the learned Magistrate rejected the claim of the wife. However, he accepted the claim of the daughter and directed the present petitioner to pay Rs. 75/- per month to the daughter by way of maintenance, from the date of the application.

This order came to be challenged by the husband, as well as by the wife and the daughter before the Sessions Court by two different revisions. Enough to point out that both these revisions were rejected on merits on 12-12-1986, with the result that the liability of the father to maintain the daughter became final. The present petitioner is paying maintenance to the daughter from time to time. On 22-12-1987, Noore Nazar, through her guardian mother Zaheda Begum, filed an application before the Judicial Magistrate, First Class, Akola, u/s 127 of Criminal Procedure Code for enhancement of the maintenance allowance already granted by the Court. This application was opposed by the father by his reply Exhibit: 9 fixed on 22-3-1988. One of the contentions raised by him was that according to the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, (hereinafter referred to as "Act No. 25 of 1986", for the sake of brevity) children who are above two years of age cannot claim maintenance from the father. He also denied the claim for enhancement.

The learned Magistrate on trial came to the conclusion that Section 3(1)(b) of Act No. 25 of 1986, could not bar the present application. On merits, the learned Magistrate found that because of the changed circumstances, the maintenance allowance already granted is liable to be enhanced. Accordingly, he enhanced the maintenance from Rs. 75/- to Rs. 150/- per month. It is this order which has been challenged in this revision.

The minor was served through her guardian, but none appeared for him. Mr. Gorde, the learned advocate for the petitioner strenuously urged before me that with the passing of Act No. 25 of 1986, the rights of the divorced women and also the children have undergone a complete change and the provisions of this Act override the provisions of the Statute which was in force immediately prior to the coming into force of this Act. It is not disputed that prior to the coming in to force of this Act, the provisions of Section 125 of Criminal Procedure Code were applicable even to the Muslims. This Act No. 25 of 1986 has a definite purpose behind it and the preamble of this Act reads as follows :

"An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto".

It is thus clear from the preamble itself that whatever changes have been effected by this Act were only restricted to muslim women who have been divorced or who have obtained divorce from their husbands and provision was made for matters connected or incidental thereto. Suffice it to point out that the children who were entitled to maintenance u/s 125 of Criminal Procedure Code did not suffer any change as far as their rights is concerned.

Mr. Gorde, however invited my attention to Section 3(1)(a) and (b) of the said Act. Section 3 reads as follows :

(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to--

(a) a reasonable and fair provision of maintenance to be made and paid to her within the iddat period by her former husband ;

(b) 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".

(Sub-clauses (c) and (d) are not necessary for our purpose).

Relying upon Sub-clause (b) of the said Act, Mr. Gorde, strenuously urged before me that even the children born to such women whether born before or after the divorce have undergone a change in their rights of maintenance. This argument is too vague to be accepted, inasmuch as Clause (b) refers only to such children who are maintained by a divorced woman. If the children are not maintained by the divorced woman, then the provisions of this Act do not apply and it has no effect to curtail their rights under the Common Law. Common Law, in this case is a Section 125 of Criminal Procedure Code where children also get the right to claim maintenance from their father who have means to provide for maintenance.

What Mr. Gorde urged before me was that, the term "she herself maintains children born to her before or after the divorce" conveys not the upkeep, but the residence. According to him, when the children stay within the divorced wife, they fall within the four corners of Sub-clause (b) irrespective of the fact whether their actual maintenance, including the upkeep, is looked after by the mother or not. It is difficult to accept this argument, because, the preamble of this Act which conveys its scope, does not permit such interpretation. The preamble, standing as it is, has only created a specific category of women who suffered a divorce and only this category is excluded from the operation of common law. By enacting Sub-clause (2), a small category of children who are maintained by their mother, is also added and that category also is excluded from the operation of the common law. Thus, where a wife is divorced by the husband and she lives alongwith her child and maintains that child, then the mother as well as the child would be excluded from the operation of the common law. But not otherwise.

In the present case, we find the mother who has been excluded from the operation of the common law. She was divorced on 11-11-1987 and therefore, she could not legitimately claim the maintenance under the common law. In fact her prayer for maintenance for herself has been rejected by the courts below, though for different reasons not connected with Act No. 25 of 1986. The fact remains that her maintenance is not the subject matter of dispute. She has acquiesced in to the rejection of her personal claim. She, however, has a child living with her, but she is unable to maintain that child. A paternity of that child is apparently related to the present respondent. There is a finding of the courts below that the wife is not able to maintain herself and this finding has become final. Here is thus a woman who has been excluded from the benefits of the common law. She does not claim any benefit for herself. It is only a child who is coming before the Court and saying that his maintenance needs to be enhanced because of the changed circumstances. In fact the liability to pay maintenance to the child has become final because of the decisions of the courts below. What she is claiming now is an enhancement u/s 127 of the Criminal Procedure Code and that too because of the changed circumstance. The question which is posed for decision at this stage is, whether the father can legitimately say that the child cannot claim maintenance because of the operation of Act No. 25 of 1986. He has raised this point in his written statement and he has very specifically stated that the child above 2 years of age cannot claim maintenance from the father.

The interpretation that Mr. Gorde wants to put regarding Sub-clause (b) of Section 3(1) does not appear to be logical, inasmuch as the sub-clause contemplates a category of children maintained by herself. The operation of common law is excluded in respect of such category only. If the children do not fall within this category, then their rights under the common law remain unaffected irrespective of the operation of Act No. 25 of 1986.

Thus, in my view, Section 3(1)(a) and (b) excludes the muslim divorced woman and the children maintained by her from the operation of the common law. But other children who are not maintained by the mother are not excluded from the operation of common law. This being the case, the argument of Mr. Gorde cannot be accepted. The right to claim maintenance under the common law exists in favour of the present _ respondent. Her right to claim enhancement because of the change of circumstances also exists under the common law.

This now takes me to another point involved in this controversy. In his evidence, Kutubuddin has stated that he is getting a monthly salary of Rs. 800/- and he is not in a position to pay Rs. 150/- to the daughter. In his cross-examination, he states that he is serving since 1964 when his basic salary was Rs. 35/- and now his basic salary is Rs. 190/- per month. Anyway, he has not filed on record his salary certificate though admittedly he is serving with the Zilla Parishad where regular accounts of his salary are kept. He has also stated that Zaheda is earning Rs. 30/- to 40/- per day in the temporary business and she also earns Rs. 250/- per month by teaching Arabic language to the students. As a matter of fact, this evidence is not at all relevant at this stage, because he has not come before the Court with the prayer for rejection. Looking to the price level that is prevailing today, I do not think that the maintenance of Rs. 150/-per month to a child today is unreasonable.

In result, there is no merit in this revision. It deserves to be rejected and is accordingly rejected. Rule is discharged.