Jammu & Kashmir High Court
Mala Sidiq vs Dilshada Banoo on 29 May, 2003
Equivalent citations: 2003(3)JKJ184
JUDGMENT Y.P. Nargotra, J.
1. A short but interesting question involved in this criminal reference is whether female children are entitled to grant of maintenance under Section 488 Cr. P.C. till they get married or their right to maintenance is restricted till they attain majority or are unable to maintain themselves whichever is earlier.
2. The respondent Mst. Dilshada Bano is the daughter of the petitioner Mala Sadiq. The respondent was living with her mother who has been divorced by the petitioner. The respondent filed an application under Section 488 Cr. P.C. for grant of maintenance in the Court of Judicial Magistrate, Ganderbal in which learned Magistrate by his order dated 3.6,2002 awarded interim maintenance to the daughter-applicant.
3. The father non-applicant challenged the order of learned Magistrate in revision before the learned Sessions Judge under Section 435 Cr. P.C. And learned Sessions Judge has recommended to this Court under Section 438 Cr.P.C. for setting aside the order passed by the Magistrate. Learned Sessions Judge has not himself gone into the determination of the question involved in the case but has found the impugned order of the Magistrate untenable in law because Magistrate had not considered the question in the light of the amended provision contained in Section 488 Cr. P.C.
4. Before answering the question formulated above I feel it necessary to point out that learned Sessions Judge too has not fully complied with the provision under which he has acted in making this reference.
5. Section 435 Cr. P.C. vests jurisdiction and power with the Sessions Judge for calling the record of any proceedings in any inferior Criminal Court situated within the local limits of his jurisdiction for satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. While exercising such power of revision a Sessions Judge is required thus firstly to go into the question of correctness, legality or propriety of an order, sentence or finding which is under challenge and then secondly to see whether such order has been passed by following the procedure prescribed by law because a proceeding can only be said to be regular if it is conducted according to the procedure prescribed by law. If upon such examination Sessions Judge becomes satisfied that any finding, sentence or order passed by the inferior court is incorrect, illegal or improper or if it is not so but has been passed without following procedure prescribed by law and in his view deserves to be set aside and does not fall within the ambit of Section 436 or 437 Cr. P.C, he is required by Section 438 Cr. P.C. to make a report (also called a criminal reference) to the High Court with his recommendations for orders. Section 438 Cr. P.C reads:-
"438. Report to High Court: -- (1) The Sessions Judge or Chief Judicial Magistrate may, if the thinks fit, on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence [or an order] be reversed or altered, and if the accused is in confinement, that he be released on bail or on his own bond.
(2) .........
(3)........
(i) .........
(ii) ........
6. From the words "report for orders of the High Court the result of such examination......" it is manifest that reasons based upon such examination on which recommendation for setting aside an order of inferior criminal court is being made must also be stated in such report.
7. The validity or otherwise of the order of the Magistrate impugned before the learned Sessions Judge primarily depended on the answer to the question formulated here in this judgment. Learned Sessions Judge therefore ought to have addressed the same himself before making a recommendation for setting aside the same to this Court.
8. Be it so, the question involved is an important question of law and in view of the independent revisional powers vested in this Court Section 435 read with Section 439 Cr. P.C. instead of remitting back this reference, I am proceeding to determine it myself. It will be beneficial to take note of the provisions of amended Section 488, Sub-section (1) of Cr. P.C.
9. It will beneficial to take note of the provisions of amended Section 488 Sub-section (1) of Cr. P.C. "488. Order for maintenance of wives, children and parents:
-- If any person having sufficient means neglects or refuses to maintain:
(a) his wife unable to maintain herself, or
(b) his legitimate or illegitimate child whether married or not unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or
(e) his father or mother unable to maintain himself or herself, a Magistrate of Ist class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for maintenance of his wife or such child father or mother, at such monthly rate not exceeding rupees two thousand 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 or a minor female child referred to in Clause (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.
10. From the bare reading of this section it clearly transpires that children legitimate or illegitimate are entitled to maintenance for the period till they attain majority or are able to maintain themselves whichever is earlier. Clause (c) of Section 488 does not make any distinction between a male or female child.
11. Learned counsel for the respondent on the strength of two judgments of the Supreme Court vehemently contends that under Section 488 Cr.P.C a major unmarried daughter, can validly claim maintenance from her father for a period till her marriage. Here it is apt to take note of the said two authorities.
12. In AIR 1997 SC 3280 "Noor Saba Khatoon v. Mohd. Qasim" the facts involved were that the Judicial Magistrate granted maintenance to the appellant wife and three minor children. The respondent divorced his wife and claimed modification of the order in view of the provisions contained in Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial Magistrate modified the order holding wife entitled to maintenance only for three months (iddat period). In respect of children it was held that their rights under Section 125 Cr. P.C. had not been affected under the Act of 1986. The respondent went in revision before the 2nd Addl. Judge who dismissed the same holding that the wife was entitled to maintenance for a period of two years after Divorce, under Section 3(1)(b) of the Act of 1986 and that right of children under Section 125 Cr. P.C. was not affected by that Act. The respondent then took the matter to the High Court under Section 482 Cr. P.C, High Court accepted the plea of respondent and held that vide Section 3(1)(b) of Act of 1986 a divorced Muslim women is entitled to claim maintenance from her previous husband for her minor children only for a period of two years from the date of birth of the concerned child. The wife/appellant challenged the order of High Court before the Supreme Court by way of Special Leave to appeal.
13. His Lordship Dr. Anand J.(as his lordship then was) speaking for the Division Bench held after noticing provisions of Section 3 of Act of 1986 as follows:-
"From a plain reading of the above section it is manifest that it deals with "Mahr" or other properties of a Muslim woman to be given to her at the time of divorce. It lays down that a reasonable and fair provision has to be made for payment of maintenance to her during the period of Iddat by her former husband. Clause (b) of Section 3(1) (Supra) provides for grant of additional maintenance to her for the fosterage period of two years from the date of birth of the child of marriage for maintaining that child during the fosterage. Maintenance for the prescribed period referred to in Clause (b) of Section 3(1) is granted on the claim of the divorced mother on her own behalf for maintaining the infant/infants for a period of two years from the date of the birth of the child concerned who is are living with her and presumably is aimed at providing some extra amount to the mother for her nourishment for nursing or taking care of the infant/infants up to a period of two years. It has nothing to do with the right of the child/children to claim maintenance under Section 125 Cr. P.C. So long as the conditions for the grant of maintenance under Section 125 Cr. P.C. are satisfied, the rights of the minor children, unable to maintain themselves, are not affected by Section 3(1)(b) of the Act. Under Section 125, Cr. P.C, the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parent are concerned there is nothing in Section 125, Cr. P.C, which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125, Cr. P.C to the children only on the ground that they are born of Muslim parent. The effect of a beneficial legislation like Section 125, Cr. P.C. cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent right of the children to claim maintenance under Section 125, Cr. P.C. where they are minor and are unable to maintain themselves. Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125, Cr. P.C. is absolute and is not at all affected by Section 3(1)(b) of 1986 Act. Indeed a Muslim father can claim custody of the children born through the divorced wife to fulfil his obligation to maintain them and if he succeeds, he need not suffer an order or direction under Section 125, Cr. P.C, but where such custody has not been claimed by him, he cannot refuse and neglect to maintain his minor children on the ground that he has divorced their mother. The right of the children to claim maintenance under Section 125, Cr. P.C, is separate, distinct and independent of the right of their divorcee mother to claim maintenance for herself for maintaining the infant children up to the age of 2 years form the date of birth of the concerned child under Section 3(1)(b) of the Act. There is nothing in the 1986 Act which in any manner affects the application of the provisions of Sections 125, 128 of the Cr. P.C relating to grant of maintenance insofar as minor children of Muslim parent, unable to maintain themselves, are concerned."
14. His lordship further observed:-
"Indeed Section 3(1) of 1986 Act begins with a non obstnate clause "notwithstanding anything 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 form the date of birth of such children, but the non obstnate clause in our opinion only restricts and confines the right of a divorcee Muslim woman to claim or received 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 the Muslim father. A careful reading of the provisions of Section 125, Cr. P.C, 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 to 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. P.C. 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.
Prof. Tahir Mahmood, in his book "Statute Law relating to Muslims in India" (1995 Edn.) while dealing with the effect of the provisions of Section 125, Cr. P.C on the 1986 Act and the Muslim Personal Law observes at page 198:
"These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the Shah Bano case and the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. There is nothing in that Act in any way affecting the application of these provisions to the children and parents governed by Muslim Law....."
As regards children, the Code adopts the age of minority from the Majority Act, 1875 by saying "Minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority".... [Explanation to Section 125 Clause (a)]. Ordinarily, thus, every Muslim child below 18 can invoke the Cr. P.C. law to obtain maintenance from its parent if they "neglect or refuse" to maintain it despite "having sufficient means".
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By Muslim Law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bukira maiden), or till they get remarried if they are thayiba (divorcee/widow). Sons are entitled to it till they attain bulugh if they are normal; and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue. The Prophet had said:
"Whoever has daughters and spends all that he has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand".
If a father is a poverty-sticken and cannot therefore provide maintenance to his children, while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves."
Thus, both under the Personal Law and the statutory law (Sec. 125, Cr.P.C) the obligation of a Muslim father, having sufficient means to maintain his minor children, unable to maintain themselves till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.
Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parent are entitled to claim maintenance under Section 125, Cr. P.C for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married, and this right is not restricted, affected or controlled by divorcee wife's right to claim maintenance for maintaining the infant child/children in her custody for a period of two years from the date of birth of the child concerned under Section 3(1)(b) of 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125, Cr. P.C, till they attain majority or are able to maintain themselves, or in the case of females, till they are married.
15. Noor Saba's judgment (supra) was rendered by the Bench consisting of Two Judges of the Supreme Court. The ratio of the said judgment has been explained by a three Judge Bench of the Supreme Court in case Jagdish Jugtawat v. Manju Lata and Ors, (2002) 5 SCC 422, as follows: --
"In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba Khatoon v. Mohd. Qasim relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125, Cr. P.C does not fix liability of parents to maintain children beyond attainment of majority, read the said provisions and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl.
Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on combined reading of/Section 125 Cr. P.C and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for".
16. Thus position of law authoritatively settled is that Section 125, Cr. P.C does not fix the liability of Parents to maintain children beyond attainment of majority. However the Jagtawat's case (supra) their Lordships upheld the following order passed by the High Court:--
"Thus, in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon'ble Supreme Court, the provisions of Section 125 Cr. P.C are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However taking an overall view of the matter, I, with all respect to the Hon'ble Court, am of the candid view that the provisions require interpretation and a daughter would cease to have the benefit of the provisions under Section 125 Cr. P.C on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent 3 as she would be forced to file another petition under Sub-Section (3) of Section 20 of the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity of litigations, the order impugned does not warrant interference".
17. Now in view of the above quoted judgments the question arises whether Section 3(1)(b) of Muslim Women (Protection Rights on Divorce) Act, 1986 can be read together with Section 488 Cr. P.C. in J & K State so as to hold Muslim major unmarried daughter entitled to claim maintenance from her father? The answer emphatically shall be 'no' because provisions of Muslim Women (Protection Rights on Divorce) Act, 1986 do not extend to State of Jammu and Kashmir and the provision contained in Section 488 Cr. P.C restricts right of a child to claim maintenance to period till he/she attains majority or is able to maintain himself/herself whichever is earlier. In case of such Hindu girl also the position in respect of her right of maintenance shall remain the same and it would not be permissible to read the provisions of Hindu Adoption and Maintenance Act, together with Section 488 as was done in Jagtawat's case (supra) by the Supreme Court for the reason that in that case the basic order in issue had been passed by a Family Court. Family Courts are the creation of Family Courts Act, Section 7 of the Act reads:-
"7. Jurisdiction. -- (1) Subject to the other provisions of this Act, a Family Court shall:-
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation:- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-
a......
b......
c......
d......
e......
(f) a suit or proceedings for maintenance;
(g) ......
(2) Subject to the other provisions of this Act, a Family Court shall have and exercise:-
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973; and
(b) such other jurisdiction as may be conferred on it by any other enactment."
18. In view of the provisions of Section 7, the Family Court possessed jurisdiction to grant maintenance under Civil Law as well as under Section 125 Cr. P.C. corresponding to Section 488 of J & K Cr. P.C. And therefore it appears that their lordships in Jagtawat's case (supra) held that Section 20(3) of Hindu Adoption and Maintenance Act, could be applied for the granting maintenance under Section 125, Cr. P.C. But in J&K no jurisdiction akin to Section 7 of Central Family Court's Act exists. A Judicial Magistrate in J&K can exercise jurisdiction for granting maintenance only under the provisions contained in Section 488, Cr, P.C under which right of children for maintenance is restricted up to the attainment of majority or ability to maintain them whichever is earlier.
19. In the present case the applicant was admittedly major as such was not entitled to the grant of maintenance under Section 488, Cr. P.C and this being so interim maintenance could not be granted by the learned trial court. The reference made by the learned Sessions Judge is accepted but for the reasons given above. The impugned order dated 4.6.2002 of the learned trial court, therefore, is set aside. This reference is accordingly disposed of. The record of the courts below be returned with a copy of this judgment.