Gauhati High Court
Mrs. Rupsan Begum vs Md. Abdus Sattar on 5 January, 1990
Equivalent citations: 1990CRILJ2391
ORDER S.K. Homchaudhuri, J.
1. In this revision petition the judgment and order dated 31-5-88 passed by the learned Sessions Judge, Nalbari in C.M. No. 7(N-1)88 and C.M. No. 9/88 are assailed.
2. By the judgment and order dated 31-5-88 passed in C.M. No. 9/88 the learned Sessions Judge set aside the order dated 10-2-88 passed by the learned Judicial Magistrate, 1 st Class, Nalbari and allowed the claim of the petitioner Smt. Rupsan Begum to her entitlement to get Rs. 2500/- from the opp. party, Abdus Sattar on account of Mahr (Dawer) money following her divorce by the opposite party in accordance with Moha-medan Law. The learned Sessions Judge however, rejected her claim on account of her maintenance as well as her properties holding that documentary evidences on records clearly established that petitioner was paid maintenance during the period of her Iddat and that she got back all her properties received by her before and after her marriage. On perusal of the impugned order and other materials on records, I do not find any legal infirmity in the impugned order passed in C.M. No. 9/88 which merits interference by this Court in the exercise of revisional jurisdiction.
3. By the impugned judgment and order dt. 31-5-88 passed in Crl. Motion No. 7(N-1) of 1988, the learned Sessions Judge held that the minor children of the petitioner, living with her are not entitled to maintenance by the opposite party under Section 125, Cr. P.C. in view of the provisions of Sub-section 1(b) of Section 3 of the Muslim Women (Protection of Right on Divorce) Act, 1986 (The Act 25 of 1986), and set aside the judgment and order passed by the learned Magistrate awarding payment maintenance Under Section 125, Cr. P.C. at the rate of Rs. 100/ - per month for each of her three children by the opposite party. By the impugned judgment and order the learned Sessions Judge however, ordered payment of maintenance at rate of Rs. 100/- per month by the opposite party for the yongest child of the petitioner up to the child's attaining 2 years of age. The impugned judgment and order dated 31-5-88 passed in Crl. Motion No. 7(N-1)88 therefore, involved the question, which needs to be decided, as to whether in view of provisions of Sub-section 1(b) of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986), minor children of muslim parents living with their mother after the divorce of the mother by the father is/are entitled to maintenance Under Section . 125, Cr. P.C. from the father when the mother is unable to maintain them. The object of the Act 25 of 1986, according to preamble, is to protect the rights of muslim women who have been divorced by or have obtained divorce from their husband and to provide for matters connected therewith or incidental thereto. The Parliament with a view to striking a balance between the Muslim Personal Law and the interest of the muslim divorced women, enacted the Act 25 of 1986 which came into force on May, 1986. Section 3 of the Act 25 of 1986 provides as follows:--
"Section 3. Mahr or other properties of muslim women to be given to her at the time of divorce.
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to --
(a) a reasonble and fair provision and 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;
(c) an ammount equal to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) ...
4. Section 5 of the Act 25 of 1986 provides that if a muslim husband and his divorced wife declare by affidavit or in any other prescribed form of declaration in writing either jointly or separately that they would prefer to be governed by the provision of Sections 125 to 128, Cr. P.C., the Magistrate shall dispose such application accordingly.
5. Mr. S. C. Das, learned Counsel for the opposite party has submitted that in view of the provisions of Sub-section 1(b) of Section 3 of the Act 25 of 1986, providing maintenance to the child/children living with the divorced muslim women, the learned Sessions Judge has correctly passed the impugned order.
6. From the object of enactment of Act 25 of 1986, as well as of the provisions of the said Act it is clear that the Act is exclusively concerned with the rights of divorced Muslim women. Save and except Sub-section (1)(b) of Section 3 of Act 25 of 1986 providing compulsory maintenance of minor child/children for a period of two years from the date of birth of the child, by the former husband to the divorced wife, there is nothing in the Act about the maintenance of minor child by the parents after the divorce.
7. Section 125, Cr. P.C. provides for maintenance of both legitimate or illegitimate minor child/children by the parents. There is nothing in Section 125, Cr. P.C. which exempts muslim parents from maintenance of illegitimate minor child/children. When under Section 125, Cr. P.C. an order for maintenance of illegitimate minor child/children can be passed against the muslim father, it cannot be reasonably held that a muslim father is not liable to be ordered to maintain his legitimate minor child/children above two years old "under the provisions of Section 125, Cr. P.C. after he has divorced his wife through whom the child/children is/are born. Proper maintenance of child is imperative. In the paramount interest of the child, laws compelling a parent to maintain his child/children are to be construed liberally so as to embrace all beneficial legislation in favour of the child. From the plain reading of the provisions of Act 25 of 1986, it is clear that provisions of Sub-section (1)(b) of Section 3 providing reasonable and fair provision of maintenance of minor child to be made and paid to the divorced muslim women by her former husband for a period of two years from the date of birth of the child/children is aright of muslim divorced women and is incidental to the divorce and the said provision, in no way comes in conflict with the provisions of Section 125, Cr. P.C. providing maintenance of minor child/children. As such, order for maintenance of minor child/children above two years can be passed against a muslim father after he has divorced his wife, if the divorced wife is unable to maintain the child/children above two years who is/are living with her.
8. For the aforesaid reasons, the impugned judgment and order dated 31-5-88 passed in Crl. Motion No. 7(N-1) of 1988 is set aside and the maintenance as awarded by the learned Magistrate at the rate of Rs. 100/ -(Rupees one hundred) per month for each of the three minor children of the petitioner against the opp. party Md. Abdus Sattar by the judgment and order dated 10-2-88 passed in Misc. Case No. 9 of 1987 is restored.
9. The opposite party is directed to pay Mahr (Dawer) money of Rs. 2500/- to the petitioner and the arrear maintenance of three children at rate of Rs. 300/ - per month within three months from today and also to continue to pay maintenance of the minor children as awarded by the learned Magistrate.
10. In the result, the petition is allowed against the judgment and order dated 31-5-88 passed in Crl. Motion No. 7(N-1) of 1988, but is rejected so, far the petition is directed against the judgment and order passed in Crl. Motion No. 9 of 1988.