Noor Saba Khatoon v. Mohd. Quasim

Facts

The appellant, turned out with her three minor children, obtained maintenance for herself and the children under Section 125 CrPC. After the husband divorced her, the trial court restricted her own maintenance to iddat under the 1986 Act but kept the children's maintenance. The High Court, relying on Section 3(1)(b), cut the children's maintenance to two years from birth; the mother appealed.

Issues

• Whether minor children of Muslim parents are entitled to maintenance under Section 125 CrPC till majority/marriage, or only the two-year fosterage provision under Section 3(1)(b) of the 1986 Act

Arguments

Husband/respondent: Section 3(1)(b) of the 1986 Act limits maintenance for the children to two years from their birth, displacing Section 125 CrPC. Appellant: the 1986 Act regulates the divorced wife's rights, not the independent right of children, whose Section 125 entitlement is unaffected.

Held

The Court held the two provisions operate in different fields. Section 3(1)(b) gives the divorced MOTHER an extra fosterage amount for two years for nursing the infants; it does not touch the children's own, independent and absolute right against their father. Under Section 125 CrPC a father's obligation (irrespective of religion) to maintain minor children unable to maintain themselves is absolute — till majority, and for daughters till marriage — mirrored by Muslim personal law (nafaqa). The High Court's order was set aside and the children's maintenance restored.

Ratio decidendi

Section 3(1)(b) of the 1986 Act does not restrict the independent right of minor children of Muslim parents to claim maintenance under Section 125 CrPC up to majority, and daughters until marriage.

Significance

Leading authority establishing that the 1986 Act is confined to the divorced wife and leaves children's secular Section 125 rights intact; consistently followed to protect maintenance of Muslim children.

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