JUDGMENT [ENTITY], J.
1. "Whether wife is entitled to claim maintenance for the minor children from the husband even though husband is ready and willing to keep the child and maintain himself, specially in cases of Mohammedans where the mother is entitled to the custody of the child even after divorce upto a particular age ?"
2. The above question stands referred to this Bench for its opinion under the following circumstances:
3. On November 20, 1978 Smt. [ENTITY], the petitioner, filed an application under [SECTION] of the [ACT] (for short, the [ACT]) in the Court of the Addl. Munsiff-cum-Judicial Magistrate No. 2 (South) claiming maintenance for herself and her two children, a son then aged two years and a daughter aged six months, from her husband [ENTITY], the non-petitioner. The learned Magistrate, however, dismissed the same on 13.4.1981 holding that the non-petitioner had neither neglected nor refused to maintain the petitioner and her children, instead, the petitioner herself was not willing to live with non-petitioner alongwith the children. The petitioner challenged the order of the Magistrate by way of a revision application under [SECTION], [ACT] to the Addl. Sessions Judges No. 2, Kota who dismissed the same on 8.2.1983. Thereupon, the petitioner filed a petition under [SECTION], [ACT] before this Court. On 20.2.1984 [ENTITY], J. (as his Lordship then was) accepted the petition and directed the non-petitioner to pay to the petitioner a sum of Rs. 50/- p.m. for each one of the two minor children towards their maintenance from the date of the filing of the application i.e. November 20, 1978 upto the attainment of majority by them. The claim for maintenance allowance for the petitioner was not pressed. This order was lateron recalled by the learned Judge on 21.7.1987 on the ground that the same had been made without giving proper opportunity of being heard to the non-petitioner.
4. When the petition came up for hearing on 7.12.1988 before [ENTITY], J., the learned Single Judge it was urged on behalf of the petitioner that even if the wife was not willing to live with her husband or that she is divorced, yet, under the Mohammedan Law, she was entitled to the custody of minor children and, therefore, the children were entitled to get maintenance from their father as they do not stay away by their own choice. In support of such contention reliance was placed on [PRECEDENT]; [ENTITY] v. Ms. Zarina, RLW 1975 222; [PRECEDENT]; [ENTITY] v. Mohd. Ismail, AIR 1956 Hyd. 14 [PRECEDENT]; and [PRECEDENT].
5. On the other hand it was urged on behalf of the non-petitioner that where a father is willing to keep his child with himself and to maintain him, it cannot be said that there is any neglect or refusal to maintain the child and the person having the custody of the child is not entitled to claim maintenance for him. The decisions of this Court in the cases of Smt. [ENTITY] v. Balveer Singh, ILR (1960) 10 Raj. 1531 and Mst. [ENTITY] v. Chuttan Khan, Cr. LR (Rajd) 1986 page 321, were pressed into service in support of this view.
6. [ENTITY], J. was of the opinion that in cases of Mohammedans where mother is entitled to the custody of her male child until he completed the age of 7 years and of female child until she has attained the age of puberty, then if the children are with her she is entitled to maintenance in respect of them and for no fault of the children, as they are at the mercy of the mother and because of the ill-will between the two, they can be permitted to starve.
7. The learned Single Judge, however, noted that there was a divergence of opinion of different Benches on the same point particularly in the case of Smt. [ENTITY] (supra), and Smt. [ENTITY] (supra), a view conflicting to that expressed in the case of [ENTITY] (supra), had been expressed by the Single Benches of this Court. Therefore, with a view to obtain a pronouncement from a Division Bench of this Court so as to remove the controversy arising from the divergent views expressed by different Benches of this Court the learned Single Judge referred the matter to the Hon'ble Chief Justice who made over the matter to this Bench.
8. Despite a note of the date and time of the hearing of the petition having been given to the petitioner through her Counsel none appeared before us on their behalf. We could not, therefore, have the benefit of hearing the arguments of the learned Counsel for the petitioner. We, however, heard the learned Counsel for the non-petitioner at length and examined the impugned orders as well as the record of the Courts below.
9. The question referred to us is, we think, no longer res integra in view of the declaration of law made on the point by the Supreme Court in the case of [PRECEDENT]. In that case the wife-appellant had filed a petition for grant of maintenance under [SECTION], [ACT] for herself as well as on behalf of the three children aged 6 years, three years and 1 1/2 years, born during the wedlock. After the Trial Court had granted the petition in favour of the appellant and the three children, the husband-respondent divorced the appellant and filed an application seeking modification of the order granting maintenance to the wife and the three children, in view of [SECTION] of the [ACT] (the Act of 1986) which reads as under :
"3. [ENTITY] of other properties of Muslim Woman to be given to her at the time of divorce:
(1) Notwithstanding any thing contained in any other law for the time being in force, a divorced woman shall be entitled to:
(a) XXX XXX XXX
(b) Where she herself maintains the children born to her before or after divorce a reasonable and fair provision for maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children;
(c) XXX XXX XXX
(d) XXX XXX XXX"
10. The Trial Court modified its order qua the wife-appellant restricting the grant of maintenance to her to the period of iddat but maintained the same in so far as the children were concerned. The revision preferred by the respondent-husband against the order of the Trial Court also failed. However, a learned Single Judge of the Patna High Court, in exercise of the inherent powers under [SECTION], [ACT] held that the grant of maintenance to the children of divorced Muslim parents, living with their mother, was restricted to the period prescribed under [SECTION] of the Act of 1986, notwithstanding the provisions of [SECTION], [ACT].
11. On the abovementioned facts their Lordships of the Apex Court addressed themselves to the question as to whether the children of Muslim parents are entitled to grant of maintenance under [SECTION], [ACT] for the period till they attain majority or are able to maintain themselves, whichever date is earlier, or in the case of female children till they get married or is their right restricted to the grant of maintenance only for a period of two years prescribed under [SECTION] of Act of 1986, notwithstanding [SECTION], [ACT].
12. Quoting with approval from page 198 of Prof. [ENTITY]'s book Statute Law relating to Muslims in India (1995) Edn. relating to the effect of the provisions of [SECTION], [ACT] on the 1986 Act and the personal law, the following passage:
"These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the [ENTITY] case and the enactment of the [ACT]. There is nothing in the 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 [ACT] by saying : "Minor means a person, who, under the provisions of [ACT], is deemed not to have attained his majority". [Explanation to [SECTION], [SECTION]]. Ordinarily, thus, every Muslim child below 18 can invoke the [ACT] to obtain maintenance from its parents if they 'neglect or refuse' to maintain it despite having "sufficient means"
X X X X X By Muslim Law, maintenance (nafqa) is a birth right 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 thaiba (divorcee/widow); sons are entitled to it till they attain balugh (majority) 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 re-imbursement by the father when his financial condition improves."
(Emphasis as supplied) The Court, speaking through Dr. [ENTITY], J., held in paras 10 of the report as under:
"10. Thus, both under the personal law and the statutory law ([SECTION], [ACT]) 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."
13. Referring to the words of Sir [ENTITY] in the Chapter on 'Maintenance of Wives and Children' that this Chapter provides "a mode of preventing vagrancy, or at least preventing its consequences" in the case of [PRECEDENT], [ENTITY], J., of the Supreme Court observed that "these provisions are intended to serve a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggard and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus [SECTION]) is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of preventive, rather than a remedial jurisdiction: it is certainly not punitive".
14. Examining the nature, character and scope of the right of indigent persons for maintenance under [SECTION], [ACT] in the case of [ENTITY], (1985) 2 SCC 556, [ENTITY], CJ. spoke for the Court in para 7 of the report as under:
"Under [SECTION], a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the Court to pay a monthly allowance to her at a rate not exceeding five hundred rupees. By [SECTION], 'wife' includes a divorced woman, who has not married. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis pagans or heathens, is wholly irrelevant, in the application of these provisions. The reason for this axiomatic, in the sense that [SECTION] is a part of the [ACT], not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular religion, like the [ACT], the Shariat or the [ACT]. [SECTION] was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would then it makes as to what is the religion professed by a neglected wife, child or parent ? Neglect by a person of sufficient means to maintain these and the inability of those persons to maintain themselves are the objective criteria which determine the applicability of [SECTION]. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True, they do not supplant the personal law of the parties but, equally the religion professed by the parties or the state of personal law by which they are governed, cannot have any repercussion on the applicability of such laws, within the framework of the [ACT], their application is restricted to a defined category of religious groups OR classes. The liability imposed By [SECTION] to maintain close relatives who are indigent is founded upon individual's obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. [SECTION], which defines 'wife' as included a divorced wife, contain no words of limitation go justify a Muslim woman from its scope. [SECTION] is truly secular in character.
15. It is thus well-settled position of law that [SECTION] is a part of criminal procedural law enacted with the object of providing quick remedy in a summary way to a class of persons who are unable to maintain themselves. In its application it makes no distinction amongst the members of such class on the ground of caste, creed, sex or religion. It extends its protective and beneficial arms to all and sundry of that class. It is thus secular in character and knows no religious barriers, particularly in the cases of maintenance of children who are unable to maintain themselves. Religion of the persons, who are liable and responsible to support them, does not disturb the scheme underlying this beneficial provision having social overtones and aiming at preventing vagrancy, immorality, crime and destitution in society. Since minor's right for maintenance springs from the very relationship of the minor child with his parents, it is, under Muslim's Personal Law, his birth right and an absolute liability of the father. Under Hindu Law the famous words of [ENTITY], as cited in [ENTITY] and referred to by [ENTITY] in Hindu Law, Sixteenth Edition page 549 that "the aged parents, a virtuous wife, and an infant child must be maintained even by doing a hundered misdeeds" show the depth and height of the moral obligation cast on a Hindu father to maintain, besides others, his minor children.
16. The moral obligation of a father to maintain his children who are unable to maintain themselves has since been given statutory recognition by certain Personal Laws like the [ACT]; [ACT]; the [ACT]; [ACT]. But neither the moral sanction provided by religion to minor's right for maintenance by his parents nor the statutory recognition of such right by the Personal Law of the parents disturbs the scheme underlying [SECTION] in so far as minor's right of maintenance is concerned. So long as a minor child is unable to maintain himself (his inability on the ground of minority is to be considered according to the provisions of the [ACT]) he is legally entitled to claim maintenance from his father who has sufficient means to maintain him. In the very nature of his such right neither the law relating to the subsisting or broken marital relationship of his mother with his father and her own right of maintenance from her husband under such law nor the sanction of religious morality behind such a right affects the absolute and birth right of the minor for maintenance from his father under [SECTION] [ACT].
17. The law relating to and governing the guardianship of the minor child, by either of the spouse during the period of his minority also becomes irrelevant in the application of his right under [SECTION], [ACT]. Neither any prescription of any time or period regarding the guardianship of his person by either of his parent as or upto a particular age nor a dispute over his guardianship between his father and mother, or his mother with-holding his custody against the willingness and readiness of his father to maintain him is to defeat his independent and absolute right of being maintained by his father. Incapable as he is to exercise free will and give free consent during the period of his minority (his will and consent may be taken into consideration to resolve the controversy over his guardianship and not to grant or refuse to grant maintenance to him under [SECTION], [ACT]) the conduct of his mother of not allowing him to live with his father cannot be a good ground to reject his right to maintenance from his father.
18. In the above sense of the matter proof of negligence or refusal by the father of the minor to maintain him will have no bearing upon his right for maintenance under [SECTION], [ACT]. In this respect the right of a minor for maintenance shall have necessarily be considered at a footing different than that of his mother. Whereas a wife may disentitle herself to maintenance if she, without any lawful excuse refuses to live with her husband and, therefore, the husband cannot be held guilty of neglecting or refusing to maintain the wife, a minor is legally incompetent to so refuse to join the company of his father. The act and conduct of his mother of refusing to live with her husband or not allowing the minor to go to his father cannot defeat minor's right for maintenance from his father.
19. Question of legal entitlement to the custody of the minor or right to his guardianship according to personal law can also not be considered in the limited scope of the summary proceedings contemplated under [SECTION], [ACT].
20. The views, which we have expressed above are, we think, in line with the consensus of judicial opinion expressed by various High Courts from time to time. The Lahore High Court in [PRECEDENT], and [PRECEDENT]; Madras High Court in [PRECEDENT], [PRECEDENT], and [PRECEDENT]; Andhra Pradesh High Court in [PRECEDENT]; Orissa High Court in [PRECEDENT]; Hyderabad High Court in [ENTITY] v. Mohd. Ismail, (supra); Bombay High Court in [PRECEDENT]; Nagpur High Court in [PRECEDENT]; and Rajasthan High Court in [ENTITY] v. Mst. Zrina (supra), have expressed similar view on the point under study.
21. In the case of Smt. [ENTITY] v. Balbir Singh (supra), [ENTITY], J. (as his Lordship then was) distinguished [ENTITY]'s case (supra), on the ground that, that was a case under Mohammedan Law according to which a mother is entitled to the custody of the children whereas the case before him was under Hindu Law according to which father is entitled to the custody of his children. On support from Lahore High Court decision in the cases of [PRECEDENT], and [PRECEDENT], and a Punjab High Court decision in [ENTITY] v. Dharmon, (1894) P.R. Criminal No. 18 at P. 64, the learned Judge held that 'apart from any consideration of personal law a right to maintenance under [SECTION], [ACT] only accrues upon proof of neglector refusal to maintain Where the father was willing to keep his child with himself and to maintain him, it can not be said that there is any neglect or refusal to maintain the child and the person having the custody of the child is not entitled to claim maintenance for him. A similar view, for same reasons, was also expressed by [ENTITY], J. in the case of Mst. [ENTITY] v. Chuttan Khan, Cr. L.R. (Raj.) 1986 at page 321.
22. With utmost respect to the learned Judges, we, for reasons recorded hereinabove, and which reasons we need not repeat once again are unable to subscribe to such a view. Suffice it to add that the view expressed by the Lahore High Court in its earlier decisions in the cases of [PRECEDENT], [PRECEDENT] (supra), and [PRECEDENT] was not followed by the same High Court in its later decisions in the cases of [PRECEDENT] (supra), and [PRECEDENT] (supra). Similarly the Punjab High Court had also recorded a departure from its view expressed in [ENTITY]'s case (supra), relied upon by [ENTITY], J. in support of his view. In the subsequent case of [ENTITY] (supra), [ENTITY], J. had referred to no decision of any High Court including this High Court in support of the view he had taken in Mst. [ENTITY]'s case (supra). The view expressed by [ENTITY], J. in Smt. [ENTITY]'s case (supra), though referred yet not endorsed by [ENTITY], J. in the subsequent case of [ENTITY] (supra).
23. The views expressed by [ENTITY], J. in the case of Smt. [ENTITY] and that expressed by [ENTITY] J. in Mst. [ENTITY]'s case do not also get any support and strength from by the law laid down by the Apex Court in the cases of [PRECEDENT] (supra), [ENTITY] (supra), and, therefore, should be considered as not laying down the correct position of law. Instead, the view expressed by [ENTITY], J. in [ENTITY]'s case (supra), with which view we fully agree, must be considered to be laying down the correct legal position in the subject on hand.
24. To conclude, we answer the question referred to us in the following manner:
"A wife is entitled to claim maintenance for the minor children from the husband even though husband is ready and willing to keep the child and maintain him. In cases of Mohammedons where the mother is entitled to the custody of child even after divorce upto a particular age, the obligation of a Muslim father to maintain his minor children, unable to maintain themselves, till they attain majority, if they are male, and in the case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife."
25. Let the record of the case, alongwith our opinion, be placed before the Hon'ble Chief Justice for appropriate directions to the Single Bench to decide the petition according to law.
26. A copy of this order be sent to each of the Family Courts and Magistrate deciding application under [SECTION]. [ACT].