NOOR JEHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) AN important question of law that too of general importance is as to whether a minor child of divorced Muslim wife is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for short "the Cr. P. C. ") from his or her father even after he or she has attained the age of more than two years. In other words, the important question of law is whether a divorced woman can claim maintenance from her former husband for the child or children born to her from that husband before or after her divorce even after the child or children have attained the age of two years under Section 125, of the Cr. P. C. despite the provisions of Section 3 (b), of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short "the Act of 1986" ).

(2.) THE undisputed facts are that the petitioner Mst. Noor Jehan married Salim Haji Shakoor on 8-5-1983 and the petitioner No. 2 Baby was born some where in 1984 from the wedlok of the said marriage. The petitioner No. 1 Mst. Noor Jehan was divorced by the non-applicant No. 2 herein Salim Haji Shakoor on 22-8-1983 and thus the petitioner No. 2 Baby was born to Mst. Noor Jehan after the divorce from her former husband - non-applicant No. 2. Both the petitioner No. 1 Mst. Noor Jehan, divorced Muslim woman, and her daughter Baby born from her former husband, namely, non-applicant No. 2 Salim Haji Shakoor, filed an application on 18-8-1986 before the Court of Judicial Magistrate First Class, Mehkar claiming maintenance under Section 125 of the Cr. P. C. In the said application the claimants stated that the non-applicant No. 2 has neglected to maintain them and they have no independent income of their own to maintain themselves and, therefore, the maintenance at the rate of Rs. 500/- per month should be awarded to them. In the application various incidents of mental cruelty and harassment were given, but the same are not relevant for the present purpose.

(3.) THE non-applicant No. 2, who was the non-applicant No. 1 in the proceedings under Section 125, of the Cr. P. C. before the trial Court, contested the application filed by his former wife and the child born from the said wedlock, and denied the demand of maintenance made by the applicants. He further submitted that he has no income of his own as alleged by the applicants. He further submitted that he himself is dependent on the income of his father and still is taking education. The non-applicant, the non-applicant No. 2 herein, set up a legal objection that on the face of the provision contained in Section 3, of the Act of 1986, the application filed by the applicants under Section 125, of the Cr. P. C. is wholly misconceived.