Sami Ahmad @ Sami Ahmad Khan v. The State Of Bihar

Petitioner/father has challenged order dated 22.01.2011 passed by Principal Judge, Family Court-Darbhanga Maintenance Case No. 78 of 2009 whereby and whereunder he has been directed to pay Rs. 1200/- per month to each of the applicant.

2. It has been submitted on behalf of petitioner/father that in Mahomedan Law second marriage is permissible and as such, having solemnization of second marriage and seven issues begotten therefrom are not the genuine and legal ground to the O.P. Nos. 2 to 4 to stay away with her mother 2 because of the fact that in terms of Article 353 as well as 355 of the Mahomedan Law father comes as a guardian by substituting the mother as soon as kid crosses age of 7 years. Therefore, all the daughters should acknowledge the status of the petitioner as their natural guardian and should live under his guardianship and during course thereof, only, they are to be maintained by the petitioner otherwise, they would not. It has also been submitted that O.P. No.1 Rajia Sultan is now married and as such, there is no question of maintenance relating to her.

3. On the other hand, learned counsel for the O.P. Nos. 2 to 4 submitted that Article 353 read with 355 do not automatically recognize the status of father as guardian rather he would be recognized only in case there is failure on the part of mother to discharge her obligation. Moreover, this case has got peculiar fact as the father along with his second wife and children are being prosecuted under Sessions Trial No. 403/2005 on account of causing murder of maternal uncle of applicant/O.P. Nos. 2 to 4 who had gone to rescue mother of applicants/ O.P. Nos. 2 to 4 while she was being brutally assaulted at the hands thereof. As such, it has been submitted that the order passed by learned lower court is just, legal and proper.

4. Learned A.P.P. endorsed the view. 3

5. Gone through the order impugned. Before coming to the issue, it is found and held that the custody of children are not at all relevant facts to be under adjudicatory province of the Court because of the fact that Section 125 Cr.P.C sans the same. Both have got independent identity to be proceeded differently though triable by the same court. Therefore, the claim of the children is not liable to be seized on the ground of disputed question of custody. Moreover, presence of Sessions Trial No.403/2005 for the murder of maternal uncle of O.P. Nos.2 to 4 while he intervened and tried to save mother of O.P. Nos. 2 to 4 is another circumstance which keeps the issue in hand at bay.

6. Now coming to the question of maintenance Article 370 of Mahomedan Law by Mulla deals with the same which speaks an obligation over the father and for better appreciation the same is quoted hereinbelow:- children

370. Maintenance grandchildren.- (1) A father is 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 (s. 352) does not relieve the father from the obligation of maintaining them (a). But the father is not bound to maintain a child who is capable 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 4 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, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.

7. The issue has come up before the Hon’ble Apex Court for adjudication in Noor Saba Khatoon v. Mohd. Quasim as reported in AIR 1997 SC 3280 wherein apart from Personal Law, the effect of Muslim Women (Protection of Rights on Divorce) Act, 1986 also taken into account and then concluded under para-11 thereof as follows:-

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 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 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, Cr.P.C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married.

8. As such the right of the O.P. Nos. 2 to 4 is found to 5 be duly recognizable in the eye of law. On account thereof are entitled for maintenance. With regard to means, the learned lower court had already taken into account the admission of the petitioner/father that he is earning Rs.26,000/- per month as salary. Hence, the quantum of maintenance so granted by the learned lower court is also found to be adequate and does not require interference.

9. Consequent thereupon, the instant petition is found to be devoid of merit, the same is, accordingly, rejected. (Aditya Kumar Trivedi, J) Patna High Court September 13th 2013 Md.Perwez Alam/AFR