Noor Saba Khatoon v Mohd Quasim

Facts

• The appellant married the respondent according to Muslim rites on 27 October 1980. Three children were born, two daughters and a son. On disputes arising, the respondent allegedly turned her out of the matrimonial home with the three children, then aged six, three and one and a half years, and refused to maintain them.
• In 1992 she claimed Rs 400 per month for herself and Rs 300 for each child. The trial court awarded Rs 200 for her and Rs 150 for each child until majority. The respondent then applied to modify the order relying on the Muslim Women (Protection of Rights on Divorce) Act 1986; the trial court adjusted her allowance but maintained the children's. His revision failed, but the High Court decided partly in his favour, restricting the children's maintenance. She appealed by special leave.

Issue

1. Whether S.3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act 1986 restricts a Muslim father's liability to maintain his minor children to two years from their birth.

Held

• The appeal was allowed. Under both personal law and S.125 of the Code, a Muslim father with sufficient means is under an absolute obligation to maintain his minor children who cannot maintain themselves, until they attain majority or are able to maintain themselves, whichever is earlier, and in the case of daughters until they marry. That obligation is not affected by the divorced wife's custody of them. S.3(1)(b) of the 1986 Act operates in a different field: the two year entitlement is for the mother's own maintenance for nursing or caring for a child during the two years from the child's birth, and it does not touch the children's independent right under S.125. There is no conflict between the two provisions, and a beneficial provision such as S.125 is not to be whittled down in the absence of express statutory language.

Ratio Decidendi

Two claims, two claimants, two provisions. The children's claim is their own, arising under personal law and under S.125, and is not derivative of the mother's. S.3(1)(b) of the 1986 Act creates a right in the mother, and it is her right that is limited to two years, because it is compensation for the nursing and caring she performs during that period. Reading the two year limit as a cap on the children's maintenance would take away a right the 1986 Act never addressed, and would do so by implication in a statute that says nothing about it. Why the beneficial construction principle carries the argument: S.125 is a beneficial provision aimed at preventing destitution. A right conferred by such a provision is not to be cut down except by express words. The 1986 Act contains no s