NOORSABA KHATOON versus MOHAD. QUASIM

Citation: [1997] SUPP. 3 S.C.R. 129 · Decided: 29-07-1997 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed
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Judgment (excerpt)

NOORSABA KHATOON 
v. 
MOHAD. QUASIM 
JULY 29, 1997 
[DR. A.S. ANAND AND K. VENKATASWAMI, JJ.] 
Code of Criminal ['rocedure, 1973 : S. 125-Children of Muslim 
parents-Held : entitled to grant maintenance for the period till they attain 
majority or are able to maintain themselves, and in case off em ale children 
till they get manied. 
Muslim Women (Protection of Rights on Divorce) Act 1986-S. 
3( l)(b )-Divorced Muslim woman-Provision for maintenance to be paid by 
her Janner husband for a period-of two years from the respective dates of birlh 
A 
B 
c 
of the Children. Held : the provision does not affect the rights of the minor 
children of divorce Muslim parents to the grant of maintenance under section D 
125 Cr.P.C. 
The appellant married the respondent according to Muslim rites 
and 3 children were born to them, two daughters and one son. The 
respondent turned the appellant and the children out of the matrimonial E 
home; the children were 6 years, 3 years and 1-1/2 years respectively. The 
respondent then took a second wife. The appellant, being unable to main-
tain herself and the children, filed an application under section 125 Cr.P.C. 
claiming a sum of Rs. 400 per month for herself and Rs. 300 for each of 
the three children. The trial court directed the respondent to pay main-
tenance to the appellant at the rate of Rs. 200 per month, and Rs. 150 each 
for the three minor children till they attain the age of majority. 
F 
Meanwhile the respondent divorced the appellant, and filed an ap-
plication in the trial court seeking modification of order of the main-
tenance, in view of the provisions of the Muslim Women (Protection of G 
Rights on Divorce) Act 1986. The trial court modified the orde1· as regards 
maintenance to her and held that she 'Yas entitled for maintenance only 
upto the period of Iddat; and retained the order as regards the grant of 
maintenance to the children. The trial court also observed that the right· 
of maintenance under Section 125 Cr.P.C. was not affected by the 1986 Act 
in any manner. The respondent challenged the order by way of a revision H 
129 
130 
SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R. 
A petition. However in a petition u/s. 482 Cr.P.C., the High Court held that 
the divorced Muslim woman was entitled to claim mllt'ntenance for her 
minor children only for a period of 2 years from the date of birth of the 
child and that the minor children were not entitled to claim maintenance 
under Section 125 Cr.P.C. after the coming into force of the 1986 Act. 
B Aggrieved, the wife· filed the present appeal. 
Allowing the appeal, this court 
HELD : 1.1. The High Court erred in holding that the right to claim 
maintenance of the children under Section 125 Cr.P.C. was taken away and 
C supersede.d by section 3(l)(b) of the Muslim Women (Protection of Right 
on Divorce) Act 1986. The right of the children.to claim maintenance under 
S. 125 Cr.P.C. till they attain majority or are able to maintain themselves 
in case of males and till they get married in case of females, is separate 
and there is nothing in the 1986 Act which affects the application of the 
provisions of Sections 125 to 128 of the Cr.P.C. relating to the grant of 
D maintenance. The provisions of S. 125 Cr.P.C. and S. 3(1)(b) of tlie 1986 
Act make it clear that the two provisions apply and cover different situa-
tions and there is no conflict. (138-E-G; 136-F-H] 
1.2. The right of minor children to receive maintenance from their 
E father till they are able to maintain themselves is absolute. It would be 
unfair to deny benefit of S. 125 Cr.P.C. to the children only on the ground 
that they are. born to Muslim parents. The effect of a beneficial legislation 
like 125 C~.P.C. cannot be allowed to be defeated except through clear 
provisions of a statute. (135-E-G] 
F 
"Statute law relating to Muslim in India" by prof. Tahir Mahamood, 
referred to 
2. The ·non obstant.e clause "not withstanding anything contained in 
any other law for the time being in force", occurring in S. 3(1) (b) of the 1986 
Act, restricts and confines the rights of divorced Muslim woman to claim 
G maintenance. for herself and children till they attain the age of 2. (136-D-E] 
3. Muslim father's obligation to maintain his minor children like 
that a Hindu as contained in S. 125 Cr.P.C. is absolute and not affected 
by section 3(1)(b) of the 1986 Act. A Muslim father can claim custody of 
H the children to maintain them but when custody has no
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