Habib vs 1st Additional Civil Judge (Junior Division) and Others

C.A. Rahim, J.—A maintenance petition was filed by Smt. Zaitoon (Respondent No. 3) against her husband Habib (Petitioner) with the allegation that she is the legally married wife and out of the wed-lock a daughter, namely. Km. Shahana Parveen (Respondent No. 4) was born. The marriage took place 12 years ago prior to 2.8.1988. When the girl was about 5-6 years old, both of them were deserted. 3-4 years after the marriage the Petitioner Habib eloped with one woman and remained untraced for some time. When he was found out. Smt. Zaitoon''s brother tried to obtain maintenance for Smt. Zaitoon and her daughter which was refused. Application for maintenance was filed claiming Rs. 300 for herself and Rs. 200 for her children. In written statement filed on 19.5.1989, Habib has stated that he has divorced her about one year and nine months back. So she cannot claim maintenance u/s 125, Code of Criminal Procedure Objection was ruled out and the trial court, 1st Additional Civil Judge, Junior Division, Bulandshahr in Case No. 240 of 1995 allowed the maintenance at the rate of Rs. 300 from the date of communication of the divorce, i.e., 19.5.1989. He also allowed Km. Shahana Parveen to receive maintenance at the rate of Rs. 200 from the date of application.

A revision was filed by Habib, the present Petitioner, which was dismissed on 21.6.1997 being Criminal Revision No. 310 of 1996. Being aggrieved Habib filed this writ petition.

Learned Counsel Sri S.K. Chaturvedi appearing for the Petitioner has submitted that since Smt. Zaitoon was divorced, in view of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short the Act), she is only entitled for the maintenance during the period of Iddat by her former husband and the daughter will get maintenance for two years from the date of her birth. In this connection he has referred the case of Sadiq Ali v. Additional Sessions Judge, Basti 1994 UP CR 688, with the case of Mohammad Yamin v. State of U.P. 1992 UP CR 231.

In the decisions, it was held that due to transactional provision u/s 7 of the Act, application pending by the divorced woman u/s 125 or 127, Code of Criminal Procedure shall be disposed of by the learned Magistrate in accordance with the provisions of this Act, subject to the provisions of Section 5 of this Act. The said Section is clear that it determines the right of a woman already divorced prior to the commencement of the Act, i.e., 19.5.1986. It has no application in cases where a woman is divorced after commencement of the Act. So the decisions referred by the learned Counsel have no application. In the instant case, it has been rightly held that the divorce was effected on the date of communication by filing written statement on 19.5.1989 much after the commencement of the Act and in these types of cases where a divorce is effected after the date of commencement of the Act, whether the maintenance case u/s 125, Code of Criminal Procedure, was pending on the date of the commencement of the Act or not, a Muslim lady shall be entitled to receive maintenance till the date of divorce or till the date of communication of the divorce, whichever is later. In that context, I find that the decisions of the lower revisional court has no infirmity.

The next contention of the learned Counsel about the entitlement of the maintenance of the child born out of the former husband will be for a period of two years only is based on misconception of Section 3 of the Act. In that section, right of a divorced lady has been determined besides her entitlement of maintenance during Iddat period. She would be entitled to receive maintenance for a period of two years of the child from the date of birth of the child out of former husband if she herself maintains the said child. It does not confine the right of children to receive maintenance from their father after two years u/s 125, Code of Criminal Procedure Section 3 of the Act only entitles a divorced lady to receive maintenance for her children for a limited period and for the rest of the period, according to Section 125, Code of Criminal Procedure the children will receive maintenance from their father. Section 3 of the Act has no application on the right of the child to receive maintenance after the age of two years.

Learned Counsel has then submitted that Section 5 of the Act is a bar for the application of the provisions of the Code of Criminal Procedure in cases where Muslim Women Act is applicable. But Section 5 of the Act is limited to the cases where the right is exercised by divorced Muslim lady u/s 3 of the Act and not u/s 125, Code of Criminal Procedure.

All the grounds taken by the Petitioner having no merits the writ petition is dismissed. No costs.