The Delhi High Court has held that children of divorced Muslim women cannot be denied maintenance because of ‘any restrictive provision contained in the Muslim Women (Protection of Rights on Divorce) Act, 1986.'
The Act was passed by the Rajiv Gandhi Government in 1986 to nullify the decision of the Supreme Court in the famous Shah Bano case.
Dismissing a petition by the father of a minor daughter against a lower court order that had granted a maintenance of Rs.2,000 per month to her, Justice S.N. Dhingra said: “I consider that the benefit under Section 125 (order for maintenance of wives, children and parents) of the Criminal Procedure Code cannot be denied to a minor daughter because of any restrictive provision contained in the Muslim Women (Protection of Rights on Divorce) Act, 1986.''
The petitioner, Rashid Ali, had challenged the lower court order on the ground that in view of Section 3(1) (b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the right of a child to claim maintenance from the father after two years of divorce of the mother did not survive. Rashid Ali's daughter was staying with his separated wife.
Describing the contention of the petitioner as baseless, Justice Dhingra said that even a wife who had been divorced under the Muslim Personal Law was entitled to claim maintenance under Section 125 of the Code after the Iddat period.
“A petition under Section 125 of the Code willbe maintainable (for the wife) before family courts so long as she does not remarry and the amount of maintenance to be awarded….. cannot be restricted for Iddat period only,'' Justice Dhingra quoted the Supreme Court as saying in a judgment.
