A divorced Muslim wife has in her custody children born out of wedlock before the divorce. Can the children claim maintenance from her and if so, how long?

Question: A divorced Muslim wife has in her custody children born out of wedlock before the divorce. Can the children claim maintenance from her and if so, how long? [HJS 2000]

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Answer

A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

In Siraj Sahebji Mujawar v. Roshan Siraj Mujawar, A.I.R. 1990 Bom 344, the Bombay High Court has held that under Muslim 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 of the code of Criminal Procedure, 1973, so long as he is in a position to do so and the children have no independent income of their own.

Section 3(1) (b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, contemplates the divorced 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 Muslim 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 provision of section 3(1)(b) of the Act of 1986.

The High Court of Andhra Pradesh in M.A. Hameed v. Arif Jan And Anr.,1990 CriLJ 96, has held that as per Section 3 of the Act of 1986, a divorced Muslim woman is also entitled to claim maintenance for the child for a period of two years, giving an additional safeguard to her under the Act of 1986. But there is no provision under the Act, taking away the right of the child to claim maintenance under section 125 of the Code of Criminal Procedure. Therefore, even the child can claim maintenance under Section 125 CrPC under guardianship against the father.

The children, therefore, of a Mohammedan have no right to maintenance after they have attained the age of puberty nor is there any obligation on the parents to maintain them after that age, except, as stated above, in the case of a son who is disabled by infirmity or disease.

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