G M JEELANI Vs. SHANSWAR KULSUM

JUDGEMENT

(1.) The present revision came to be filed under the following circumstances. The revision petitioner is one Sri G. M. Jeelani, hereinafter referred to as the husband. The first respondent in the revision petition is the wife and the second respondent is the daughter of the revision petitioner. They will be hereinafter referred to as the wife and minor daughter. The first respondent was married to the petitioner at Mandapeta as per Muslim rights on 5-5-1975. For some time they lived together resulting in the birth of the second respondent. It appears that subsequently differences arose between the parties resulting in the husband divorcing the wife by saying irrevocable Talaq on 2-7-1980. Subsequently the wife filed M.C. No. 45 of 1980 on the file of the learned II Additional J.F.C.M. Kakinada, under section 125 Crl.P.C. for maintenance for self and for her minor daughter. Having heard the matter, the learned II Addl. J.F.C.M. awarded maintenance at Rs. 300.00 and Rs. 50.00 respectively to the wife and minor daughter. Aggrieved by the same the husband filed Crl.R.P. No. 7 of 1992 on the file of the II Addl. Sessions Judge, Rajahmundry. The learned Judge reduced the maintenance awarded to the wife from Rs. 300.00 to Rs. 200.00 while retaining the maintenance awarded to the daughter at Rs. 50.00. The husband preferred Crl. R.P. 1804 of 1990 under Section 127(3)(b) of the Crl.P.C. on the file of the II Addl. J.F.C.M. Kakinada, aggrieved by the maintenance awarded in favour of the wife. Having heard the matter, the learned II Addl. J.F.C.M. allowed the Crl. R.P. No. 1804 of 1990 on 13-11-1990. Thus it was held that the wife was not entitled to any maintenance. This order was passed in view of the Muslim Women (Protection of Rights on Divorce) Act 1986, in brief the 'Act'. Alleging that the maintenance awarded to the minor daughter at Rs. 50.00 per month is too small, the wife as guardian of her minor daughter filed Crl. M.P. No. 786 of 1989 requesting the Court to enhance the maintenance to minor daughter from Rs. 50 to Rs. 500.00 per month. Having heard the matter, the Court dismissed the same as per orders dated 13/11/1990. Aggrieved by the orders of dismissal in Crl. M.P. 786 of 1989 the wife filed Crl. R.P. 4 of 1991 on the file of the learned III Addl. Sessions Judge, Kakinada and as per orders dated 2-5-1991 the said Crl. R.P. 4/90 was allowed enhancing the maintenance to the minor child to Rs. 500.00 per month from Rs. 50.00 Aggrieved by the said orders, the husband has filed the present revision case.

(2.) Sri Venugopala Rao, learned Counsel for the petitioner submits that the minor daughter is admittedly about 17 years old. As per Section 3(1)(b) of the Act, the minor daughter is entitled to maintenance only for a period of two years from the date of her birth and consequently the orders of the learned III Additional Sessions Judge, are not sustainable. Section 3(1)(b) of the Act reads as follows :

(3.) Sri Venugopala Rao, learned Counsel for the petitioner submits that Section 5 of the Act is a bar for maintainability of this application. Section 5 of the Act reads as follows : "Section 5 : Option to be governed by the provisions of Section 125 to 128 of Act 2 of 1974 : If on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her-former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 or 1974) and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.