1. This Civil Revision Application raises an interesting and a somewhat intricate issue. The parties are Muslims governed by Mahomedan Law. The present application arises out of execution proceedings. Both decree and the appellate order in this case were at the instance of the respondents under the Mahomedan Law.

The Respondents herein are the plaintiffs in the original suit. They are the then estranged wife and her two children. A composite suit was filed by them being Regular Civil Suit No. 574 of 1982 in the Court of Joint Civil Judge, J.D, Kolhapur against the petitioner-original defendant husband inter alia for divorce and for the maintenance of the children. The suit was decreed by judgment and order dated June 28, 1984 in terms of which a decree for divorce was passed and the defendant husband was directed to pay a sum of Rs. 100/- P.M each by way of maintenance of the two children to the divorced wife. The defendant husband accepted the decree. He did not file any appeal there against. He also did not file cross-objections even when the plaintiffs filed appeal inter aha claiming higher amount by way of maintenance allowance for the children. The appeal being Civil Appeal No. 421 of 1984 was disposed of by District Judge, Kolhapur by his judgment and decree dated April 11, 1988 inter alia enhancing the maintenance allowance for each of the two children to Rs. 175/- from Rs. 100/- P.M No appeal, revision or review was filed against the aforesaid appellate order by the plaintiffs or the defendant and hence the appellate order has become final.

2. The plaintiffs who, thus, became decree holders took out Darkhast proceedings — Regular Darkhast No. 225 of 1988 against the defendant — the judgment-debtor in the executing Court referred to hereafter as the Trial Court, It is in these proceedings that by application Exh. 17 dated March 7, 1989, the defendant husband resisted the execution. His main contention was that the Parliament in its wisdom has enacted an act being act no. 25 of 1986, namely, The Muslim Women (Protection of Rights on Divorce) Act, 1986 on May 19, 1986 (for short the new Act). section 3(1)(b) thereof, it was stated, limits the obligation of a Muslim husband in respect of maintenance of children maintained by the divorcee wife to two years from the date of their respective births. The provision, it was further stated, had an overriding effect on all laws including Mahomedan Law. Since, in the present case both the children were above 2 years of age at the time of divorce, he had no obligation to pay maintenance allowance to the divorcee wife and the decree cannot be executed against him. The claim was resisted by the plaintiffs. The Trial Court rejected the defendant's objections vide order of the same dated i.e March 7, 1980.

3. The defendant husband has come up before this court by way of civil revision application against the impugned order. Elaborate arguments have been advanced by Shri Rege, the learned Counsel for the petitioner-defendant. Similarly, Shri Vyas for the respondents has also assisted the Court well. For the sake of brevity it is proposed to deal with the rival contentions in the course of judgment.

4. In the first instance this Court has to consider the provisions of Mahomedan Law vis-a-vis the parties as regards the obligation of Muslim father to maintain his children as the original proceedings were throughout under the Mahomedan Law.

Under section 370 of Mulla's Mahomedan Law a Muslim father is bound to maintain his sons until they attained the age of puberty and daughters until they were married. This obligation is absolute except in cases where the father is poor and incapable of earning by his own labour, etc. However, in the present case this is not even the defence. Therefore, what is required to be considered is the meaning of expression “A father is bound to maintain”. In other words, does it mean that a father is bound to maintain them only if they are with him or in his custody. In the commentary on Mulla's Principles of Mahomedan Law, 16th Edn, at page 339 it is stated that the father's obligation to maintain his children is absolute. Mere fact that the children are staying with the mother does not deprive them of their right to be maintained by the father nor does this fact by itself absolve the father of his obligation to maintain them. This is not a mere opinion of the Commentators. The view is based on the Madras High Court decision in the case of Kachi Muhaidin Tharaganar v. Sainambu Ammal, AIR 1941 Madras 582. The relevant observations are found in Head Note (b) and are reproduced:

“The maintenance of children is obligatory on the father and as long as he is in a position to do so and the children have no independent means of their own, it remains his duty to provide for them. In a suit for recovery of maintenance, the rules of maintenance, so far as the children are concerned, have got really nothing to do with the father's right of custody. If the father has any right of custody of his children, he is entitled to enforce that right but the fact that he has not done so or that his children are residing elsewhere does not deprive them of their right to claim or recover maintenance from their father.”

Similar view was taken by a Full Bench of Oudh High Court in the case of Mt. Ghuran v. Syed Rias Ahmad, AIR 1935 Oudh 492. The custody of the children in Oudh case was with the grand-mother and yet it was held that the father was bound to maintain the children. It, thus, appears clear that under the Mahomedan Law so far as the children out of the dissolved wedlock are concerned, the father's obligation to maintain them is absolute in terms of section 370 so long as he is in a position to do so and the children have no independent income of their own.

5. Next pertinent question is whether and to what extent section 3(1)(b) of the new Act has a bearing on this aspect of the matter.

It requires to be borne in mind that there has never been a dispute that it is the Muslim personal law that prevails over the civil law wherever there is a contrary provision in the Mahomedan law on the subject. There has, of course, been debate about the proposition whether the Muslim Personal Law will also prevail over the provisions of sections 125 to 128 of the Criminal Procedure Code. The latest Supreme Court decision on the issue is that of Mohd. Ahmed Khan v. Shah Bono Begum, (1985) 2 SCC 556 : AIR 1985 (SC) 945 in which it was inter alia held that there was no conflict between the Muslim Personal Law i.e Mahomedan Law and sections 125 and 127 of the Criminal Procedure Code, that sections 125 and 127 of Criminal Procedure Code were applicable to Muslims and it was a matter of regret that Article 44 of the Constitution of India had remained a dead-letter and it was high time that a beginning should be made in the direction of securing a uniform Civil Code for all the citizens of this country. Perhaps, the last observations in the decision led to some controversy resulting into the enactment of the new Act. The objects and reasons for enacting such an Act as well as the preamble of the Act, to say the least, make it abundant clear that the rights conferred upon a Muslim divorced wife under Muslim law i.e Mahomedan Law are protected, and not abrogated, restricted or repealed. The question of maintenance of children as such was not involved in the controversy and the object of the Act was not in any way to regulate the obligation of the Muslim father to maintain his children.

6. It is true that section 3(1)(b) of the new Act begins with non-obstante clause “Notwithstanding any thing contained in any other law for the time being in force” and clause (b) thereof provides that divorced woman shall be entitled to the payment of reasonable and fair provision for maintenance by her former husband if she herself maintains the children out of their wedlock for a period of two years from the dates of birth of such children. In this sense it is arguable that divorcee woman in her own right may not be entitled to claim or receive payment for the maintenance of the children maintained by her for a period beyond what is contemplated in section 3(1)(b). That is all. The question in the instant case is different. It is about the right or entitlement of the children to be maintained by their father and the Muslim father's obligations to maintain them in terms of section 370 of the Mahomedan Law and it is this distinction which requires to be appreciated. On carefully reading the two provisions keeping in view the object with which the new Act was introduced and the principles of harmonious construction, it becomes clear that the two provisions apply to and cover different situations and there is no real conflict between the two. The new Act deals with the obligation of the husband vis-a-vis his divorcee wife. For two years from the date of their respective births, the children are supposed to be ordinarily if not necessarily in the custody of the mother. In other words she has necessarily to maintain them. That is why a provision is made under section 3(1)(b) of the new Act that the husband shall pay to the divorcee wife for a period of two years from the date of their respective births in respect of their maintenance and will have no right to claim custody as that may not be in the interest of the children. The obligation of the father to maintain his children under section 370 of the Mahomedan Law is absolute. Under this section it may be open to the father to contend that he is prepared to maintain them if they stay with him and not otherwise. In other words, a Muslim husband/father may claim the custody of the children to fulfil his obligation to maintain them. But having not claimed the custody of the children, he cannot certainly refuse to maintain them just because the children are in the custody of their mother i.e divorcee wife or somebody else. The two decisions referred to in paragraph 4 are authorities for the proposition that the custody of the children with somebody else is no bar to their right of maintenance by the father and to the obligation of the father to maintain them. The father, if he so desires, may take appropriate steps to claim custody of the children. Some other consequences might follow if the custody of the children is denied to him. However, this is not the situation in this case.

Reference was also made to the decision of this Court in the case of Mahaboobkhan Faizullakhan v. Parveenbanu, 1988 MLJ 781 by Shri Rege for the petitioner husband. On carefully going through the said, judgment it is seen that what was held in that case was that the provisions of sections 125 and 127 of the Criminal Procedure Code stood repealed so far as Muslim husbands were concerned because of the provisions in the new; Act. The fact that other observations were made in that context cannot and should not be overlooked.

The pure and simple case made out by the petitioner i.e defendant husband is that his obligation to maintain the children because of the provisions of section 3(1)(b) of the Act is limited for a period of two years from the respective dates of birth of such children and therefore any decree passed by any Court shall not be executed against him if the said children are over two years. In my Judgment, the reading of aforesaid provision by Shri Rege for the petitioner is not quite correct. This provision contemplates the divorcee wife's right to claim maintenance in respect of her children and this has nothing to do with the independent right of the children to be maintained by the father under section 370 of the Mahomedan Law. That right of the children is separate and independent of the divorcee wife's (their mother's) right to claim maintenance. Naturally, therefore, such a right cannot certainly be affected by the provisions of section 3(1)(b) of the new Act. It is not out of place to mention here that the plaintiffs who are decree-holders in this case include the children also and the divorcee wife is acting as guardian for them. It is a case different from the one where she could claim maintenance herself for her children in terms of section 3(1)(b) of the new Act.

Having regard to the above discussion, I have no difficulty in holding that the trial Court was justified in rejecting the objections raised on behalf of the petitioner-husband.

Rule is, therefore, discharged. Interim stay stands vacated.

The petitioner shall pay the costs of this proceeding to the respondents.

Order accordingly.