Salma Banoo vs Mohd. Rafiq and Another

B.R. Arora, J.—These two criminal miscellaneous petitions are directed against the order dated December 14, 1989, passed by the Additional Sessions Judge, Chittorgarh, in Criminal Revision No. 46 of 1987, arising out of the order dated August 7,1987, passed by the Chief Judicial Magistrate, Chittorgarh granting maintenance.

The wife Mst. Salma Banoo filed an application u/s 125, Cr. PC in the Court of the Chief Judicial Magistrate, Chittorgarh, for the grant of maintenance to herself as well as to her daughter Sahana Bano This application, filed u/s 125, Cr. PC was allowed by the learned Chief Judicial Magistrate and the learned Chief Judicial Magistrate, by his order dated October 27, 1984, granted the maintenance of Rs. 300/- per month both for the wife and her daughter Sahana Banoo. This maintenance was allowed with effect from February 9, 1983, i.e., from the date of the application. Dissatisfied with the order passed by the learned Chief Judicial Magistrate, awarding the maintenance to Salma Bano, the husband Mohammed Rafiq filed a revision petition before the learned Additional Sessions Judge, Chittorgarh. The matter was ultimately compromised between the parties in the ''LOK ADALAT and the amount of maintenance was reduced from Rs. 300/- per months to Rs. 200/- per month, which was made payable on 10th of every month. It also agreed that Mohammed Rafiq will pay Rs. 2000/- towards the outstanding maintenance allowance to Mst. Salma Bano on or before November 10, 1986. It was further ordered by the LOK ADALAT that if the husband Mohammed Rafiq fails to deposit the determined maintenance allowance of Rs. 2000/- in Court on or before November 10, 1986 then Mst. Salma Bano will be entitled to maintenance allowance of Rs. 300/- per month. The compromise entered into between the parties was produced before the learned Additional Sessions Judge, Chittorgarh, which was verified by the learned Additional Sessions Judge. After coming into force of the Muslim Women (Protection of Right on Divorces) Act, 1986 hereinafter referred to as ''the Addt, 1986''), Mohammed Rafiq, on December 8, 1986, filed an application u/s 127(3) of the Code of Criminal Procedure for cancellation of the order passed on August 25, 1984. The learned Chief Judicial Magistrate, by his order dated August 7, 1987, dismissed the application filed u/s 127(3) Cr. PC by the husband Mohammed Rafiq. Aggrieved with the order dated August 7, 1987, passed by the learned Chief Judicial Magistrate, rejecting the application u/s 127(3) Cr. PC. Mohammed Rafiq preferred a revision petition before the learned Additional Sessions Judge, Chittorgarh, and the learned Additional Session Judge, by his order dated December 14, 1989, partly allowed the revision petition and set aside the order of {he learned Chief Judicial Magistrate granting Maintenance allowance to Mst Salma Bano, the wife, but, however, maintained the order granting maintenance to the daughter Sahana Bano. It is against this order that the present two petitions u/s 482 Cr. PC. have been filed. S.B. Criminal Miscellaneous Petition No. 66/1990 Salma Bano -V Mohammed Rafiq has been preferred by the divorced wife against her husband for the grant of maintenance while S.B. Criminal Miscellaneous Petition No. 130/1990 has been preferred by the Mohammed Rafiq the father of Salma Bano-against the order of grant of maintenance to his daughter Sahana Bano. As both these petitions arise out of the same judgment. I, therefore, propose to decide both these petitions by this common judgment. 3. I have heard Mr. G.S. Mehta counsel for Salma Bano and Mr. N.P. Gupta counsel for the husband Mohammed Rafiq and the learned Public Prosecutor.

The point for consideration in S.B. Criminal Miscellaneous Petition No. 66 of 1990 is, the effect of the provisions of Muslim Woman (Protection of Right on Divorce) Act, 1986 (for short ''the Act, 1986'') on the orders of maintenance passed u/s 125, Cr. PC. earlier to the date when the Act of 1986 came into force and these orders became final; and whether these orders, passed u/s 125, Cr. PC will remain effective even after coming into force of the Act of 1986. Similar question: whether the provisions of the Act, 1986 are having retraction or whether the orders of maintenance awarded under the Code of Criminal Procedure, necessarily require any modification after coming into force of the Act, 1986, came-up for consideration before the Division Bench of this Court in the case of Abid Ali v. Rasia Begum 1988 RCC 51 and after considering various authorities on the point and looking to the statements and the objects and the intention for which the Act of 1986 was enacted, the Division Bench of this Court Held that "the Act of 1986 does not contain any saving clause for the right granted or orders passed in favour of the divorced Muslim Woman and the Act of 1986 has completely obliterated the right of such woman to get the maintenance. The repeal without saving such right means that such woman had never acquired any such right and in this view of the matter, the said right cannot, now, be enforced u/s 125(3) Cr. PC. Therefore, if a Muslim woman is divorced prior to coming into force of the Act, 1986, in whose favour the order of maintenance has been passed and has become final, or is pending in the revision or in Other Court, is being challenged by the husband and if such order is held to be executable, then it will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act, 1986, for which it has been enacted.

A careful reading of the provisions of the Act, 1986 makes it clear that the right of Muslim divorced woman to get maintenance from her husband under the provisions of Section 125, Cr. PC has been curtailed by the Act of 1986 and now she is entitled to get maintenance from her former husband only upto the period of IDDAT and the Muslim husband is not liable to make any provision or to pay any maintenance after the period of IDDAT is over. The legislative intention in enacting the Act Of 1986 is quite clear. Neither an order passed u/s 125, Cr. PC nor the liability incurred earlier to the coming into force of the Act, 1986 has been saved. Not only the right granted u/s 125(1) but even the remedy provided u/s 125(3), Cr. PC have been lost. Section 7 of the Act of 1986 envisages complete replacements of the right and remedy provided u/s 125, Cr. PC. The provisions of Section 125 to Section 128 of the Code of Criminal Procedure had been made applicable in cases. which fell with in the purview of Section 6 of Act of 1986. According to Section 5 of the Act of 1986, if on the date of first hearing of the application under Sub-section (2) of Section 3, a divorced Muslim and/or her former husband declares by an affidavit or any other declaration in writing in such form, as may be prescribed, either jointly or separately, that they will prefer to be governed by the provisions of Sections 125 to 128 of the Code and file (s) such affidavit and declaration in the Court hearing the application, the Magistrate shall dispose such application accordingly. Apart from Section 5, there is no provision, which makes the provisions of Sections 125 to 128, Cr. PC applicable in the case of Muslim divorced woman. The Act of 1986 has completely obliterated the right of maintenance to the divorced Muslim woman after the IDDAT. Even if an order granting maintenance has been passed in favour of a Muslim divorced woman prior to the coming into force of the Act of 1986 and has become final, still the Muslim divorced woman is not entitled to get the maintenance allowance, as allowing the maintenance in these cases will be in complete contravention of the intention of the very object of the Act, 1986 for which it has been enacted. The object, with which the Act of 1986 was enacted is to bring the law of maintenance payable to the divorced wife in consonance with the Muslim Personal Law and the provisions of Sections 125 to 128 of the Code of the Criminal Procedure will have no application except in the case of the option exercised by the parties u/s 5 of the Act of 1986 to any such claim of maintenance made by the wife u/s 125 of the Code. As no such option has been given by the parties in the present case, therefore, the provisions of Sections 125 to 128 Cr. PC. are not applicable in this case.

In this view of the matter, Salma Bano is not entitled for any maintenance from her husband Mohammed Rafiq after the IDDAT Period is over.

The question which requires consideration in S.B. Criminal Miscellaneous Petition No. 130 of 1990 Mohammed Rafiq v. Salma Bano and another) is: whether the daughter of the divorced wife, living with her mother, is entitled for maintenance from her father u/s 125 of the Code of Criminal Procedure and what will be the effect of Section 3(1)(b) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986) on the obligation of the father towards his children.

According to Muslim Personal Law, as well as u/s 125 Cr. PC, it is die obligation of the father to provide maintenance to his minor children. It is an absolute obligation, not shareable with any person. In Hamilton''s Hedaya, a classical work on Muslim Law (Volume I) Book No. 4 (1791 Edition), in Chapter XV (Sect 4)_ at page 408, it is stated:

The maintenance of infant children rests upon their father; and no person can be his associate or partner in furnishing it (in the same manner as no person is admitted to be associated with a husband in providing for the maintenance of his wife) because the word of GOD, in the Koran says ''the Maintenance of whe Woman who ''Suckles an infant Rests upon hmi to whom the infant is Born'', (that is, upon the father) from which it appears that the maintenance of an infant child also rests upon the father, because'', as maintenance Is decreed to the child with her milk, it follows that the same is due to the child himself, fortiori.

If the child be an infant at the breast, there is no obligation upon the mother to suckle it, because the infant''s maintenance rests upon the father and in the same manner the hire of a nurse; if is possible, moreover, that the mother may not be able to suckle it, from want of health or other sufficient excuse, in which case any constraint upon her for that purpose would be an act of injustice-What is here advanced proceeds upon a supposition of a nurse being easily procured, but where this is not the case, the mother may be constrained to take that office upon herself, lest the infant perish.

Neil B.E. Baillie, in his Book on ''Digest of Mohammedan Law'', III Impression 1957 Edition), at page 460, says:

A father is bound to maintain his children and no one shares a burden with him.

He further says, at page No. 462:

A father must maintain his female children absolutely until they are married, when they have no property of their own. But he is not obliged to maintain his other male children unless they are disabled by infirmity or disease.

Tyabji''s in his book on Muslim Law, The Personal Law of Muslim in India and Pakistan, dealing with the question of maintenance of descendants, in Section 319, stated:

319--The father is solely obliged to provide the entire maintenance to his children until they become adult, including the period of infancy, during which the mother or other person is entitled to their custody.

In Section 321,it has been provided that the daughters are entitled to maintenance until they are married unless they have property of their own.

Mulla, in his book on ''Principles of Mohammedan Law (18th Edition) 4the Re-print, at page 383, States:

370 Maintenance of Children and grand Children.

(1) A father bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is eatable of being maintained out of his or her own property.

(2) If the father is poor, and incapable of earning by his own labour, the mother if she is in easy circumstances, is bound to maintain her children, as the father would be.

(3) If the father is poor and infirm, and the mother also is poor, to maintain the children lies on the grand father, provided he is in easy circumstances.

B.R. Verma, in his book on Islamic Law Personal a Commentary on Mohammedan Law (In India, Pakistan and Bangladesh), Dealing with the question of maintenance to the children and grand children, at page 309, in Section 86, states:

A person, even though he is a poor, shall be bound to maintain his children till the time of weaning, but after that the duty to maintain the children and grand children shall, if they are not possessed of property from which they can be maintained (But not otherwise) be as follows:

(i)In the case of boys; who have not attained the puberty and the unmarried girls relations in the following order, shall be bound to maintain them:

(a) The father;

(b) The mother, if the fatehr is necessitous and the mother is not poor'' (e) the nearest grand-parents, paternal maternal, if

(i) The father is necessitous and the mother is poor; and

(ii) If the grand parent is not poor.

(2) In the case of an adult son, who is poor and is disabled by infirmity or disease or insane, the father is liable to maintain him;

(3)The illegitimate sons below puberty and illegitimate unmarried daughters, shall be maintained only by mother.

Asaf A. A. Fyzee, in his book ''Out line of Mohammedan Law (IVth Edition), at page 214, states:

(B)--Children and descendants-Father is bound to maintain his sons until they attain puberty and his daughters until they are married. He is also responsible for the upkeep of his widowed or divorced daughter. The father is not bound to provide separate maintenance for a minor son who refuses to live with aim without reasonable cause; nor is an unmarried daughter entitled to separate maintenance unless the circumstances are such as to justify her in setting away. But the father''s obligation is not lessened by the child being in the HIDANA (Custody) of the mother. An adult son need not be maintained unless he is infirm.

If the father is poor, the mother is bound to maintain the children. And, failing her, it is the duty of the paternal grand father. Grand children and other lineal descendants also possess rights of maintenance.

From the bare reading of all the recitals from the various books, cited above, it is clear that it is the obligation of the father to maintain his children till they attain the age of puberty and in the case of daughter, it is the obligation of the father to maintain her till she is married. He is bound to maintain them even if he is indigent or the children are in the custody of the mother and no one shares this obligation with him.

Section 125 of the Code of Criminal Procedure also deals with the order for maintenance of the wife, children and parents and reads:

125--Order for maintenance of wives, Children�s and parents.

(I) If any person having sufficient means neglect or refuses to maintain

(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

A Magistrate of first class may upon proof of such neglect of refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clues (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

According to Section 125, Cr. PC, also, it is the obligation of the father to maintain the children. The provisions regarding maintenance enshrined u/s 125, Cr. PC are independent of Personal Law governing the parties. Both, Section 125, Cr. PC as well as under the Muslim Personal Law, it is the obligatory duty of the father to provide maintenance to his children and there is no conflict in between Muslim Personal Law and Section 125 or Section 127 of the Code of Criminal Procedure, so far as the obligation of the fatehr to maintain his children from the divorced wife, is concerned and it is the obligation of the father to provide maintenance to the minor children.

The next question, which requires consideration is the effect of Section 3(1)(b) of the Act No. XIV of 1986 on the obligation of the father to maintain his children under the Muslim Law or u/s 125, Cr. PC. It has been contended on behalf of the father that Section 3(1)(b) of the Act of 1986 begins with non obstinate Clause and provides that the divorced Muslim woman shall be entitled to the payment of reasonable and fair provision by her farmer husband if she herself maintain the children, born out of their wed-lock, for a period of two years from the date of births of such children. The case of the father, while placing reliance on the provisions of Section 3(1)(b) of the Act of 1986, is that his liability is limited for a period of two years from the respective date of births of such children and, therefore, he is not liable to make payment towards the maintenance of the children after their attaining the age of two years.

For the proper appreciation of the effect of Section 3(1)(b) of the Act No. XXV of 1986 on the obligation of the Muslim father to maintain his children, it is necessary to see the object for which this Act was enacted. The Act No. XXV of 1986 was enacted by the Parliament to strike out a balance between the Mohammedan Personal Law and the interests of Muslim divorced woman, and to set at rest the controversy crept in due to the decision of the Supreme Court in the case of Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, as to the obligation of the Muslim husband to pay the maintenance to the divorced wife and to specify the right which the Muslim divorced woman is entitled to at the time of divorce and to protect her interest.

From the statement of Object and reasons of the Act No. XXV of 1986, as well as from the provisions of the Act of 1986, it is clear the the Act is exclusively concerned with the rights of a divorced Muslim woman and has no relevance and concern so far as the right of maintenance u/s 3(1)(b) of the Act of 1986 is a right of the divorced Muslim woman to get the maintenance for two years from the date of birth of the child and is incidental to the divorce. This provision contemplates the divorced wife''s right to claim maintenance in respect of her children upto the age of two years and this has nothing to do with the independent right of the children to be maintained by the father under the Muslim Law. That right of the children is sacred and independent of the divorced Muslim wife''s right to claim maintenance.

The provision with respect to the right of divorced Muslim woman to get the maintenance from her husband u/s 3(1)(b) of the Act of 1986 for her children born to her before or after the divorce for a period of two years from the respective date of the birth of the children has been made in consonance with the principles of Muslim Law; as under the Muslim Law, it is not obligatory for the wife to suckle her child and the maintenance of the infant rests upon the father. For the suckling of the child, it is the duty of the father to hire a woman to suckle his infant child. He may, also, lawfully hire the mother of the child herself for this work when her IDDAT. after the divorce, is complete because when that is complete, the marriage remains no longer in force and the woman can then be hired as an indifferent person.

This period of two years, considered by the Legislature, is with respect to the right of the wife to claim maintenance during the weaning period and the amount payable during the weaning period by the father is payable to the wife may before the reward or hire charges to suckle the child is weaned, it is the obligation of the father to provide maintenance to the child.

The provisions of Section 3(1)(b) of the Act No. XXV of 1986 are made in conformity with Aayet 233 of Sura 2 of Holi Koran (translated inh English by Maarmadwy pikthai and published by Maktaba AI-Flashat Rampur. (UP) at page 166 and reads:

Mothers shall suckle their children for two whole years (that is) for those who wish to complete the suckling. The duty of feeding and clothing nursing mothers in a seemly manner is upon the father of the child. No one should be charge beyond his capacity. A mother should not be made to suffer because of her child nor should be to whom the child is born (be made to suffer) because of his child. And on the (father''s) heir is incumbent the like of that (which was incumbent on the fatehr. If they disputes to wean the child by mutual consent and (father) consultation, it is no sin for them and if wish to give your children out to...it is no sin for you, provided that ye pay what is due him you in kindness. Observe your duty to Allah is seer of what ye do.

If, therefore, appears that mis Section 3(1)(b) of the Act No. XXV of 1986 which has been enacted in conformity with Aayat 233 of SURA 2 of Holi Koran and contemplates the divorced wife''s right to claim maintenance from her husband in respect of the children for a period of two years from the date of their births, i.e. during the weaning period, which is incidental to divorce and which has nothing to do with the independent right of the children to be maintained by the father. After the child is weaned they it is the obligation of the father to provide maintenance to the child. An obligation to maintain the children is a personal obligation of the father. Even if the child is living with his/her mother and is in the custody of the mother, and is prevented to return to the father, it cannot be said that the child is at fault and that his conduct has disentitled him/her to get maintenance from her/ his father. Even if the child prefers to remain with the mother due to natural love & affection, that will not affect the liability of the father to maintain to child. If the father has any objection with regard to the living of the child with the mother, he can apply in the competent Court for the custody of his child and assert his own legal right. But so long the custody of the child remains with the mother he cannot refuse to pay the maintenance to the child irrespective of the fact whether or not the mother has the right to be maintained by him. If a father thinks that the child should remain with him, then he can take recourse under the law for taking the custody of the child. The question of custody of the children cannot be decided in a summary manner in a proceeding u/s 125, Cr. PC and the maintenance cannot be refused by the Courts acting u/s 125, Cr. PC. by denying me right of the maintenance to the child from the father on the question of custody; The right of the child to be maintained by his father is an independent right guaranteed under the Muslim Personal Law as well as under the Code of Criminal Procedure. That right is a separate and independent of the divorced wife''s right to claim maintenance and which right cannot be affected by these provisions. There is no conflict between the provision of Section 125 of the Code of Criminal Procedure providing maintenance to the minor children with that of the Muslim Personal Law or Section 3(1)(b) of the Act No. XXV of the Act 1986, and, therefore the order passed by the learned lower Court, granting maintenance to the daughter from the father, thought she is living with her mother, cannot be without jurisdiction or unreasonable.

Consequently, both the miscellaneous petition, filed u/s 482, Cr. PC, have got no force and they are hereby dismissed.