KULSUMBEM ADAMBHAI Vs. NOORMOHMAD PIRBHAI

JUDGEMENT

(1.) The petitioners before this Court are the divorced wife and the children of the respondent no. 1 respectively. The petitioner no. 1 and the respondent no. 1 were married sometime in the year 1980 and were divorced in the year 1989. Two children, the petitioners nos. 2 and 3, were born during the said wedlock. After divorce, the petitioners filed Misc. Criminal Application No. 1 of 1990 in the court of Judicial Magistrate, First Class, Botad against the respondent no. 1 for maintenance under Section 125 CrPC. The learned Magistrate by his judgment and order dated 1st October, 1990 allowed the application. The petitioner no. 1 was awarded a monthly maintenance of Rs. 300/= and the petitioners nos. 2 & 3 were awarded a monthly maintenance of Rs. 200/= each. Feeling aggrieved, the respondent no. 1 preferred Criminal Revision Application No. 122 of 1990 before the learned Addl. Sessions Judge, Bhavnagar. The learned Addl. Sessions Judge by his judgment and order dated 4th July, 1992 held that after introduction of the Muslim Women [Protection of Rights on Divorce] Act, 1986 [hereinafter referred to as `the Act'], the parties governed by the said Act could be subjected to the provisions under Section 125 CrPC only in the manner provided for under Section 5 of the Act i.e., only on both the parties agreeing to subject themselves to Section 125 CrPC. In the present case, the respondent no. 1 had not agreed to subject himself to Section 125 CrPC and had objected to the Magistrate's exercising power under Section 125 CrPC. The application was, therefore, not maintainable. The learned Addl. Sessions Judge, therefore, quashed and set-aside the order of the learned Magistrate made on Misc. Criminal Application No. 1 of 1990. Feeling aggrieved, the applicants have preferred the present revision.

(2.) The facts undisputed are : the petitioner no. 1 and respondent no. 1 were married in the year 1980 according to the Muslim rights and were divorced in the year 1989, according to the Muslim Shariyat. The petitioners no. 2 & 3 are the children born during the said wedlock.

(3.) The learned Magistrate having recorded the evidence has held that the respondent no. 1 had an agricultural income and he was serving as a truck driver also, earning salary of Rs. 1200/= per month. Considering the income of the respondent no. 1 and his other liabilities, a monthly maintenance of Rs. 700/= had been awarded to the petitioners, as aforesaid.