Mohd. Tahir vs Ku. Tarannum and Another

N.S. Azad, J.—Arguments heard.

By order dated 27th April, 1998, passed in M.Cr.C. No. 1801/97,this Court ordered grant of maintenance to respondent No. 1 u/s 125 of the Cr.PC, which stood disallowed by C.J.M. on 25th May, 1992, in Criminal Case No. 42/92 and by the Revisional Court in Criminal Revision No. 46/95.

On an application been filed u/s 128 of the Cr.PC, registered as M.Cr.C. No. 41/2000, on behalf of respondent No. 1 and her sister Tabassum, seeking an enforcement of order of grant of maintenance, the learned C.J.M. allowed the application on 13th of June, 2000, and ordered enforcement of maintenance order, passed by this Court in M.Cr.C. No. 1801/97.

The petitioner challenged the aforesaid order in Criminal Revision No. 176/2000, on the ground that non-applicant No. 1 so also her sister Tabassum have become major and hence they are not entitled for maintenance from the date of attaining the majority. By that time, Tabassum, the sister of non-applicant No. 1 got married therefore, the payment of maintenance to Tabassum was challenged on the ground of her marriage also.

The learned A.S.J., Rewa, disallowed the petitioner''s revision so far as it relates to respondent No, 1, on the strength of Noor Saba Khatoon v. Mohd. Quasim, reported in 1997 (3) Crimes 106 (SC), wherein, it was explained by their Lordships of the Supreme Court that-

"7. Indeed Section 3(1) of 1986 Act begins with a non-obstante clause "notwithstanding any thing contained in any other law for the time being in force" and Clause (b) thereof provides that a divorced woman shall be entitled to a reasonable and fair provision for maintenance by her former husband to maintain the children born out of the wedlock for a period of two years from the date of birth of such children, but the non-obstante clause in our opinion only restricts and confines the right of a divorced muslim woman to claim or receive maintenance for herself and for maintenance of the child/ children till they attain the age of two years, notwithstanding anything contained in any other law for the time being in force in that behalf. It has nothing to do with the independent right or entitlement of the minor children to be maintained by their muslim father. A careful reading of the provisions of Section 125, Cr.PC and Section 3(1)(b) of the 1986 Act makes it clear that the two provisions apply and cover different situations and there is no conflict, much less a real one, between the two. Whereas the 1986 Act deals with the obligation of a muslim husband vis-a-vis his divorced wife including the payment of maintenance of her for a period of two years of fosterage for maintaining the infant/infants, where they are in the custody of the mother, the obligation of a muslim father to maintain the minor children is governed by Section 125, Cr.PC and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children this obligation extends till their marriage. Apart from the statutory provisions referred to above, even under the Muslim Personal Law, the right of minor children to receive maintenance from their father, till they are able to maintain themselves, is absolute."

Thus, the learned AS.J., Rewa, is found to have committed no illegality in rejecting the petitioner''s revision petition so far as it relates to respondent No. 1, on recording this finding that the non-applicant No. 1 is entitled to maintenance u/s 125, Cr.PC till she gets married. It is explained by the Hon''ble Supreme Court in the aforesaid case, a minor female child is entitled for maintenance even after attaining the age of majority, till she is married.

Thus, in the absence of any miscarriage of justice or patent illegality, this petition does not merit, which is accordingly rejected at the stage of motion hearing itself.