Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.558 of 2010 ====================================================== Wajih Ahmad S/O Fasih Ahmad R/O Khajanchi Hat P.S.-K.Hatt,Dist.- Purnea. Versus .... .... Petitioner/s 1. The State Of Bihar 2. Sahin Wafa D/O Abul Wafa Divorced W/O Wajih Ahmad And Mother And Natural Guardian Of Arbisia Anjum @ Nonish R/O Moh.-Raja Bari,P.S.-K.Hatt,Dist.-Purnea. .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Md. Sufiyan, Adv. For the O.P. No.2 : Mr. Helal Ahmad, Adv. For the State : Mr. Nand Kumar, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 12. 2-07-2013 Petitioner / husband / father has challenged the order dated 12-03-2010 passed by the Principal Judge, Family Court, Purnea in Maintenance Case No.738 of 2006 by which the petitioner has been directed to pay Rs.2500/-per month to the minor daughter, namely, Arbisha Anjum @ Bonish by way of interim maintenance. Sahin Wafa, Opposite Party No.2 filed Misc. Case on behalf of Arbisha Anjum @ Bonish aged about 6 years claiming herself to be mother, natural guardian as well as custodian against Wajih Ahmad, the petitioner /O.P. disclosing therein that divorce had already been effected amongst the spouse and on account thereof, the daughter is residing with her. The applicant and is -2- presently reading in Class L.K.G. It has further been submitted that petitioner is getting Rs.1000/- in lieu of interim maintenance under Case No.11M of 2002 under Section 3 of Muslim Women (Protection of Right on Divorce) Act, which is not found to be sufficient for maintaining herself as well as the minor child and therefore Rs.8000/- have been demanded as maintenance amount. With regard to means of O.P. / petitioner, it has been averred that he is earning Rs.40,000/- per month being a Chattered Accountant and further, deals with business relating to Max Computer from which he is earning Rs.25,000/-, along with having double storied building and landed property on account of which he is earning about Rs.8 lacs per annum. By way of filing of show cause coupled with oral submission, it has been submitted on behalf of petitioner/husband / father that parties now stood divorced and on account thereof no proceeding under Section 125 Cr.P.C. will proceed. It has also been submitted that Case No.11 of 2002 filed by Sahin Wafa is still continuing wherein she was granted Rs.500/- per month in lieu of maintenance which the petitioner / O.P. is regularly paying. It has further been submitted that while allowing the prayer for anticipatory bail to the petitioner by the Hon’ble Apex Court in
Facts
Cr. Appeal No.350 of 2004 arising out of SLP (Cri.) No.5302 of -3- 2003, Rs.500/- per month was granted towards the maintenance of the child and on account thereof the petitioner / O.P. could not be proceed against under parallel proceeding. As such the order dated 12.03.2010 passed by the Principal Judge, Family Court, Purnea in Maintenance Case No.738 of 2006 happens to be bad, illegal, improper and is fit to be set aside. It has further been submitted that divorcee is not at all entitled to seek maintenance under guise of Section 125 Cr.P.C., rather she has to claim maintenance, if so desires under Section 3 of Muslim Women (Protection of Right on Divorce) Act, 1956. In likewise manner, as submitted, happens to be procedure relating to claim of children. On the other hand, the learned lawyer for the Opposite Party No.2 submitted that petition was not filed by the wife rather filed on behalf of minor daughter and on account thereof, a proceeding under Section 125 Cr.P.C. is found to be maintainable. It has further been submitted that Muslim Women (Protection of Right on Divorce) Act is exclusively applicable against a divorcee and not against the children, therefore fate of maintenance proceeding launched under Section 125 of the Cr.P.C. at the behest of children is not at all found to be over shadowed by the Muslim Women (Protection of Right on Divorce) -4- Act. With regard to means, it has been submitted that for the
Legal Reasoning
purpose of grant of ad interim maintenance, a prima facie material has to be brought up on record by means of an affidavit which the Opposite Party / petitioner had already placed. In likewise manner there happens to be denial on the part of petitioner / Opposite Party and after parallel scrutiny thereof, the order impugned has been passed. From the order Annexure-2, it is apparent that an order dated 25.02.2003 granting maintenance to Sahin Wafa was passed in accordance with Section 3 of the Muslim Women (Protection of Right on Divorce) Act, directing the petitioner / Opposite Party to pay Rs.500/- per month as an ad interim maintenance. The order does not speak with regard to grant of any sort of ad interim maintenance in favour of minor daughter on whose behalf the present proceeding has been launched. From Annexure-3, the order passed by the Hon’ble Apex Court dated 18-03-2004 in Cr. Appeal No. 350 of 2004, it is evident that the court had not passed any order with regard to maintenance of the minor daughter invoking any statutory provision rather petitioner / Opposite Party on his own volunteered which was taken into account by the Hon’ble Apex Court. This order was neither under Muslim Women (Protection of Right on Divorce) Act nor under -5- Section 125 of the Cr.P.C., therefore, the aforesaid order cannot be construed as an order having the flagrance of either of the statute. From perusal of the Muslim Women (Protection of Right on Divorce) Act, it is apparent that no provision has been made with regard to maintenance of a minor child, girl till the date of her marriage save and except under Section 3(b) whereunder the maintenance was permissible to an infant up to the age of two years. As soon as the infant crosses the age of two years, the protection having under the act vanishes and so, for her survival the only one remedy is found to be available by way of filing of petition under Section 125 of the Cr.P.C. The aforesaid issue was before the Hon’ble Apex Court in a case Noor Saba Khatoon Vs. Mohd. Quasim reported in (1997) 6 SCC 233 and the same has been dealt under: “8. Indeed Section 3(1) of 1986 Act begins with a non obstante 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 from the date of birth of such children, but the non obstante clause in our opinion only restricts and confines the right of a divorcee 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 CrPC 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-(cid:224)-vis his divorced wife including the payment of maintenance to her for a period of two years of fosterage for maintaining the infant/infants, -6- 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 CrPC 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. 9. 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 CrPC on the 1986 Act and the Muslim Personal Law observes at p. 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(1), clause (a).] Ordinarily, thus, every Muslim child below 18 can invoke the CrPC law to obtain maintenance from its parents if they ‘neglect or refuse’ to maintain it despite ‘having sufficient means‟…. * * * By Muslim law, maintenance (nafaqa) is a birthright of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (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 will, on the Day of Judgment, be as close to me as two fingers of a hand.‟ If a father is poverty-stricken 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.” (emphasis supplied) 10. Thus, both under the personal law and the statutory law (Section 125 CrPC) 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. 11. Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim -7- maintenance under Section 125 CrPC 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 the 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 the 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 CrPC till they attain majority or are able to maintain themselves, or in the case of females, till they are married”. Again the issue has come up in Mst. Bilkis Begum @ Jahanara v. Majid Ali Gazi & Anr. reported in JT 2002 (Supp.1) SC 115 and reiterating the principal enunciated by the above referred judgment, it has been decided in following way: “4. From the observations quoted above it is clear that the right of the appellant to claim maintenance for her children from her former husband under Section 125 of the Cr.P.C. is recognized even after the enactment of the 1986 Act. The position is also settled that liability of the father to maintain his minor children and unmarried daughters is absolute and in case he defaults the divorced wife can file an application under Section 125 of Cr.P.C. claiming maintenance for the children who are living with her. 5. Applying the principles laid down in the aforementioned decided case to the case in hand the position is clear that the application filed under Section 125 of the Cr.P.C. claiming maintenance for the two children is to be proceeded with by the learned magistrate and disposed of applying the provisions of the Code of Criminal Procedure. So far as the claim of maintenance for the divorced wife the proceedings under Section 125 cannot be is concerned proceeded with. She is entitled to receive her dues according to the 1986 Act, and if she has not yet received the same she has to take recourse of the proceedings under that Act and realize the amount in accordance with law”. Thus, from the aforesaid judicial pronouncement, it is manifest that a proceeding under Section 125 Cr.P.C. is maintainable so launched on behalf of children are concerned. As such, no impediment is foreseen with regard to legality of the -8- proceeding in the background of the submission raised on behalf of petitioner. Now, coming to the quantum of ad interim maintenance so granted by the learned lower court, the same has to be taken into consideration in the background of well being of the minor child who is yet to groom and for that best educational environment is necessitated for her healthy development, which should be clutched on the score of means though is supported with prima facie evidence as acceptable in the eye of law for the present stage. Moreover, it happens to be an ad interim maintenance subject to modification on the basis of the evidence which yet to be adduced during course of trial by the rival party. As such, I do not see any cogent reason to interfere with the order impugned. Consequent thereupon, revision petition is found to be devoid of merit and is accordingly rejected. (Aditya Kumar Trivedi, J.) Patna High Court Dated, the 2nd day of July, 2013 Prakash Narayan