Section 125 CrPC: Karnataka HC Says Muslim Father Must Maintain Children Despite Divorce
Court reiterates that under Mohammedan law and Section 125 CrPC (now Section 144 BNSS), a Muslim father’s obligation to maintain minor children continues even if they reside with their divorced mother, and the mother’s employment is no defence.
Karnataka High Court upholds Muslim father’s child maintenance obligation.
The Karnataka High Court recently observed that under both Mohammedan law and Section 125of the CrPC [now Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)], a Muslim father is under an obligation to maintain his minor children even if they are residing with their divorced mother.
Court also observed that the mere fact that the mother is employed cannot absolve the father of his statutory and personal law obligation to maintain the children.
The bench of Justice Ravi V. Hosmani made the observation while dismissing a petition filed by a father challenging orders directing him to pay maintenance of ₹2,000 per month each to his two minor sons.
The petitioner contended that the children’s mother, a Government school teacher, had sufficient income to maintain them, whereas he was working as a daily-wage teacher in a private Urdu school with limited earnings. He further alleged that the maintenance proceedings had been initiated only to harass him.
Rejecting the contention, the high court observed that the Supreme Court has held that both parents have a duty to maintain their children and that the mere fact that the mother is employed cannot be a ground for the father to shirk his responsibility.
Court also noted that the petitioner had failed to produce any material, such as salary records, to substantiate his plea that he lacked sufficient means to maintain his children.
Court further noted that the parties were governed by Mohammedan law, under which a father’s obligation to maintain his minor children is well recognised.
Referring to the Supreme Court’s decision in Noor Saba Khatoon v. Mohd. Quasim (1997), the high court reiterated that this obligation exists not only under personal law but also under Section 125 CrPC.
Quoting the Supreme Court, the court observed:
“Both under the personal law and the statutory law (Section 125 CrPC) 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 are living with the divorced wife.”
The high court further observed that under Mohammedan law, a father’s duty to maintain a son continues until he attains majority or is capable of maintaining himself, whichever is earlier.
In the case of a daughter, the obligation continues until her marriage. Court emphasised that this obligation does not cease merely because the children reside with their divorced mother.
On the facts of the case, court noted that both children were minors and that the petitioner had not placed any material to establish that he had no
It also recorded that he had admittedly not paid maintenance for over two years despite the children residing with their mother.
The family court had awarded maintenance of ₹2,000 per month to each child after considering the financial position of both parents and the needs of the children.
The revisional court affirmed the order. Finding no illegality, perversity or jurisdictional error in both the orders, the high court declined to interfere and dismissed the petition.
Case Title: MOHAMMED ASHFAQULLA v MOHAMMED JUNAID And ANR
Bench: Justice Ravi V. Hosmani
