PERSONAL LAW
Supreme Court on Maintenance of Children
The Children of Muslim parents are entitled to grant of maintenance under Section 125 of Code of Criminal Procedure (Cr.P.C.) for the period till that attain majority or are able to maintain themselves whichever date is earlier, the Supreme Court has ruled.
In the case of Muslim female children, they are entitled to get maintenance under Section 125 of CPC till they get married, the court said. The Bench noted "Whereas the 1986 Act deals with the obligation of Muslim husband vis-a-vis his divorced wife including the payment of maintenance to her `for a period of two years of fosterage for maintaining the infant/infants,' while they are in the custody of the mother, the obligation of Muslim father to maintain the minor children "is governed by Sec. 125 CPC and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves. Whichever date is earlier," the Bench noted and added that in the case of female children this obligation extended till their marriage.
Both under the "personal law" (governing Muslims) and the statutory law (Sec. 125 CPC), 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 living with divorced wife". "Indeed, it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Sec. 125 CPC to the children only on the ground that they are born of Muslim parents". "the effect of a beneficial, like Sec. 125 CPC cannot be allowed to be defeated except through clear provisions of a statute."
(Source: T. Padmanabha Rao in The Hindu, 31.7.1997)
Justice for All Editorial, The Times of India, 4 August, 1997
The Supreme Court ruling should be welcomed as one more step forward on the road to a gradual and voluntary evolution of a uniform civil code. In fact, this particular judgment will benefit not just the Muslim community. By making these enlightened rulings on a case-by-case basis, the courts are, in fact, ensuring that UCC comes about in as painless a manner as possible.
Many inequities remain which need to be corrected and the courts are certain to do so whenever the relevant cases come up before them. Among these are the sanction for polygamy and unilateral talaq in the Muslim Personal Law and the provision preventing persons other than Hindus from adopting a child. Despite the fears expressed by the political class, none of the judgments overturning provisions in personal laws have evoked any significant protest from the communities involved.
S.C. Judgement in accord with Shariat Shahabuddin's Statement, 9 August, 1997
"The recent ruling by the Supreme Court (SC) on the Muslim Child's right to maintenance by the father has been widely trumpeted as a departure from the Muslim personal law. However, the Supreme Court's essential ruling is fully in accordance with the Shariat. It has correctly ruled that the Muslim Women (Protection of Rights on Divorce) Act, 1986 is limited to the rights of Muslim divorcees and does not cover the rights of children under Muslim Law. It is gratifying to note that the SC has given this ruling a universal dimension.
The objection raised by the Muslim community to Sec. 125 of Cr.P.C. was basically on account of the definition of 'wife' to include 'divorcees'. This was sought to be clarified by the legislature by inserting Sec. 127(3)(b) but this was ignored by the SC in the Shah Bano case. This led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
In this case the Supreme Court has, however, ruled that the father has to maintain his minor children till they attain majority and in the case of females till they get married, notwithstanding the fact that the minor children are living with divorced wife.
Under the Muslim personal law, the father may exercise the option of custody, in the case of a son, after the age of 7 and in the case of a daughter, if the mother remarries. This aspect also has been covered by the Supreme Court by leaving it open to the father to seek custody under the relevant laws. In any case, Section 125 of the Cr.P.C. is silent on the question of custody.
Unfortunately, there is a tendency to confuse three separate issues: social reform in the Muslim society, the codification of Muslim personal law and the introduction of a uniform civil code - optional or otherwise. Once this confusion is removed, it will be seen that even the much-maligned Muslim Women (Protection of Rights on Divorce) Act, 1986 is much more beneficial to Muslim divorcees than the common dispensation under Section 125 of the Cr. P.C.
Those who would like a uniform civil code to be introduced through the judicial backdoor, must appreciate the bigger issues involved: the sanctity of the principle of the supremacy of the legislature and the violation of the constitutional guarantees of religious freedom.
Unequal Before the Muslim Law
* The right of a Muslim male to polygamy.
* The right of a Muslim male to unilaterally divorce his wife.
* (The exclusive right of) a Muslim (male to be) guardian of minor child's property.
* Inequality in inheritance.
(Source: The Communalism Combat, May 1997)
