MOHD KUTUBUDDIN Vs. NOORE NAZAR

JUDGEMENT

(1.) THE order passed by the Judicial Magistrate, First Class, 6th Court, Akola on 18-10-1988 in misc. Criminal Case No. 1361/87 enhancing the quantum of maintenance, has been challenged in this revision.

(2.) IN order to appreciate the real controversy involved in the case, the statement of following facts would be necessary. One Zaheda Begum was married to Mohd. Kutubuddin (the present petitioner) some time in 1983 and their marital ties continued till 11-11-1987. During the continuance of the marital ties, the said Zaheda Begum gave birth to a female child Noore Nazar on 5-11-1984. This Zaheda Begum was divorced by Kutubuddin on 11-11-1987. Zaheda Begum and her daughter Noore Nazar filed an application before the Judicial Magistrate, First Class, akola under Section 125 of Criminal Procedure Code for maintenance on the ground that zaheda Begum was neglected or refused to be maintained by her husband and that she was driven away from the house. It was also alleged that she was unable to maintain herself and the child. This was vide Misc. Criminal Application No. 8/85. This claim was opposed by the husband. He denied that he refused and/or neglected to maintain the wife and the child. He alleged that his wife withdrew from his society without any reasonable and sufficient cause and hence they were not entitled to maintenance. The trial went on before the Magistrate and by his order dated 30-10-1988 the Magistrate held that the wife was unable to maintain herself. He negatived the case of the wife that she was ever illtreated and neglected and refused to be maintained by her. He recorded a positive finding that the wife withdrawn from the society of her husband without any reasonable and sufficient cause. On these findings, the learned magistrate rejected the claim of the wife. However, he accepted the claim of the daughter and directed the present petitioner to pay Rs. 75/- per month to the daughter by way of maintenance, from the date of the application.

(3.) THIS order came to be challenged by the husband, as well as by the wife and the daughter before the Sessions Court by two different revisions. Enough to point out that both these revisions were rejected on merits on 12-12-1986, with the result that the liability of the father to maintain the daughter became final. The present petitioner is paying maintenance to the daughter from time to time. On 22-12-1987, Noore Nazar, through her guardian mother Zaheda Begum, filed an application before the Judicial Magistrate, First Class, Akola, under Section 127 of criminal Procedure Code for enhancement of the maintenance allowance already granted by the court. This application was opposed by the father by his reply Exhibit: 9 fixed on 22-3-1988. One of the contentions raised by him was that according to the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, (hereinafter referred to as "act No. 25 of 1986", for the sake of brevity) children who are above two years of age cannot claim maintenance from the father. He also denied the claim for enhancement.