Noor Saba Khatoon v. Mohd. Quasim

 

 

Utkarsh Kumar_ 4^th year_ Department Of Law_ Maharishi Markandeshwar (Deemed to be University)_ Task 2

Case Commentary: Noor Saba Khatoon v. Mohd. Quasim

Citation: AIR 1997 SC 3280, (1997) 6 SCC 233

 

Date of Judgement: 29th July, 1997

 

Bench: A.S. Anand (J), K. Venkataswami (J)

 

Facts

 

●      On October 27, 1980, the appellant married the respondent according to Muslim customs and had three children out of wedlock: two daughters and a son

●      The respondent reportedly withdrew the appellant and her three children, then aged 6 years, 3 years, and 1 1/2 years, from the marriage house due to disagreements between the parties, and refused to maintain her and the children thereafter. The respondent later married Shahnawaz Begum, his second wife.

●      . On 13.2.1992, the first wife (appellant) filed an application under Section 125 of the Indian Penal Code at the Court of Judicial Magistrate, First Class, Gopalganj. By order dated 19.01.1993, the court granted the applicant and her children maintenance.

●      In light of the requirements of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the respondent divorced the appellant and filed for modification of the decision dated 19.01.1993 in the order dated 19.01.1993 (hereinafter referred to as the 1986 Act).

 

Background

 

●      Following the Shah Bano decision, muslim women gained the right to lifelong support after divorce.

●      To overturn the Supreme Court's decision in Shah Bano's case, Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986.

●      S. 3(1)(b) of the Muslim Women Act of 1986 states that a woman is entitled to supplemental maintenance for caring for her children for a period of two years from the date of birth.

●      The issue in this case is whether children over the age of two are entitled to mauntaince.

 

 

 

Issues

 

Whether the children of Muslim parents are entitled to grant of maintenance u/s 125 Cr.P.C. or is their right limited to the grant of maintenance only for a period of two years prescribed u/s. 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986?

 

Judicial Magistrate First class (trial court) decision:

 

The appellant-wife was only entitled to support for three months following her divorce under the 1986 Act, i.e. for the time of Iddat, but the entitlement to maintenance u/s 125 Cr.P.C. in relation to the children was not impaired in any way by the 1986 Act.

 

2nd Additional Judge (Revision court) decision:

 

Dismissed the revision petition.

 

High Court decision:

 

A divorced Muslim woman is only entitled to maintenance from her previous husband for her minor children for a period of two years from the date of birth of the concerned child under Section 3(1)(b) of the 1986 Act, and the minor children were not entitled to maintenance u/ Section 125 Cr. P. C. after the 1986 Act came into force.

 

Supreme Court Verdict:

 

The Court determined that Section 3(1)(b) of the 1986 Act allows the mother to receive supplemental maintenance for the fosterage period of two years from the date of birth of the child of marriage in order to sustain that kid during the fosterage period. Maintenance for the prescribed period referred to in Sec 3(1)(b) is granted on the claim of the divorced mother on her own behalf for the purpose of maintaining the infant/infants for a period of two years from the date of birth of the child concerned who is/are living with her, and presumably is aimed at providing some extra money to the mother for taking care of the infant/infants for the two-year period. It has nothing to do with the child's or children's right to maintenance under Section 125 of the Cr.P.C. Section 3(1)(b) of the 1986 Act does not affect the rights of minor children who are unable to support themselves as long as the conditions for the grant of maintenance under Section 125 Cr. P. C. are met. The father has an unequivocal obligation to provide for his children under Section 125 Cr. P. C., and as long as he is in a position to do so and the children have no independent means of their own, he must do so.

A detailed examination of Section 125 of the Criminal Procedure Code and Section 3(1)(b) of the 1986 Act reveals that the two laws apply to and cover different situations, and that there is no conflict between them. Unlike the 1986 Act, which governs a Muslim husband's obligations to his divorced wife, including the payment of maintenance to her for a period of two years of fosterage for maintaining the infant/infants in the mother's custody, Sec 125 Cr.P.C. governs a Muslim father's obligation to maintain minor children, and his obligation to maintain them is absolute until they reach majority or are able to support themselves, whichever comes first.

As a result, any Muslim child under the age of 18 can use the CrPC law to seek maintenance from his or her parents if they "ignore or refuse" to do so despite "providing sufficient means."

 

Judgement

 

The court ruled that children of Muslim parents are entitled to maintenance under section 125 Cr.P.C. until they reach a majority or are able to support themselves, whichever comes first, and in the case of females, until they marry.