ALLABUKSH KARIM SHAIKH Vs. NOORJAHAN ALLABUKSH SHAIKH

JUDGEMENT

(1.) AN application was filed by a divorced Muslim wife and minor daughter against their husband and father under Section 125 of the Code of Criminal Procedure claiming maintenance for each of them. The application has been dismissed so far it related to the claim of the divorced wife, but has been allowed so far it relates to the claim of the minor daughter. The husband/father has filed this appeal challenging the grant of maintenance to the daughter on the ground that no such application, even by the daughter, is any longer maintainable in view of the provision of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The application was filed before the Matero Politan Magistrate at Bandra, but the same thereafter stood transferred to the Family Court at Bandra under the provisions of section 8 (c) of the Family Courts Act, 1984 and has been disposed of by the Family Court in the manner stated above.

(2.) UNDER section 19 of the Family Courts Act, 1984, as it stood before the Family Courts (Amendment) Act, 1991, an appeal could lie to this Court. But as a result of the amendment of 1991, no such appeal is any longer maintainable. The present appeal having been filed in 1992 after the commencement of the Family Courts (Amendment) Act 1991, it is obvious that the same cannot lie. Section 19 (4) of the Family Courts Act, as amended as aforesaid, however, provides that the revisional jurisdiction of the High Court may nevertheless be invoked against an order passed by a Family Court under Chapter IX of the Code of Criminal Procedure which contains Section 125. It is well settled that even in a case where an appeal does not lie under the law, the High Court may, in a fit case, treat the memorandum of appeal as an application for revision and proceed accordingly. In view of the importance of the questions involved in this proceeding we propose to do so.

(3.) AS already noted, the main ground urged by the father against whom the order of maintenance has been made by the Family Court in respect of his minor daughter, is that as a result of the operation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a minor child is entitled to be maintained only for a period of two years from the date of its birth under the provisions of Section 3 (1) (b) of the aforesaid Act. We have given our serious consideration to this contention raised on behalf of the father by his learned Counsel, but we have not the slightest doubt that we must repel the contention for the reasons stated hereunder.