BILKIS BEGUM JAHANARA Vs. MAJID ALI GAZI

JUDGEMENT

(1.) Leave granted.

(2.) The appellant Mst. Bilkis Begum @ jahanara, was the wife of respondent no. 1 majid Ali Gazi. She filed an application under section 125 of the Criminal Procedure code (Code of Criminal Procedure, 1908) claiming maintenance for herself and for her two minor daughters @ Rs. 500. 00 per month each. The application was registered as proceeding no. M 7/92. During pendency of the proceeding, the respondent divorced the appellant on 7.2.92. Thereafter, she filed an application under section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (for short the 1986 Act) stating, inter alia that she prefers to be governed by the provisions of sections 125 to 128 of the Cr. P. C. instead of the provisions of 1986 Act and sought permission of the magistrate for the purpose. The said application was rejected by the learned magistrate by order dated 27.4.94 on the ground that an application under section 5 of the 1986 Act, has to be made either jointly or separately by both the parties and an application filed by one of the parties without consent of the other could not be entertained. She carried the matter to the High Court in revision wherein the order passed by the magistrate was confirmed and the revision petition was dismissed. Hence, the grievance of the appellant.

(3.) On analysis of the arguments placed by learned counsel for the parties, the question that arises for determination is whether the application filed by the appellant under section 125 Cr. P. C. claiming maintenance for self and for minor children could be considered by the magistrate or she had to seek relief under the 1986 Act. This question was considered by this Court in the case of Noor Saba khatoon v. Mohd. Quasim, [jt 1997 (7) sc 104] in paragraph-8, whereof, this court interpreting section 3 (1) of the 1986 act and section 125 of the Cr. P. C. observed: