GULAM MUSTAFA Vs. TAHARA BEGUM

JUDGEMENT

(1.) The only question that arises for consideration in this revision petition is whether a Mohammadan wife, aged 15 years, is entitled to initiate action without a next-friend, for maintenance, under Section 125 of the Code of Criminal Procedure. The husband is the petitioner before this Court.

(2.) The respondent, who is a divorcee, applied to the III Metropolitan Magistrate for an order of maintenance under section 125 Cr.P.C. alleging that her husband has refused to maintain her despite his having sufficient means therefor. As the learned Magistrate found on evidence that the respondent was aged only 15 years at the date on which she made the application for maintenance, he rejected her claim on the ground that being a minor, she was not competent to maintain the action unless she is represented by a guardian. This order was however reversed in revision by the learned Metropolitan Additional Sessions Judge, Hyderabad, and the matter was remanded to the court of first instance for disposal on merits, as according to him, the mere fact that the respondent was only 15 years of age on the date of her application does not disqualify her from initiating the action under Section 125 Cr. P.C. Aggrieved by this order, the husband has preferred this petition.

(3.) Learned counsel for the petitioner contends that the Court below should have seen that the respondentwho is admittedly a minor, does not have the capacity to maintain an action under the provisions of section 125 Cr. P.C. and that the learned Metropolitan Additional Sessions Judge failed to notice the difference between the right to maintenance and capacity to sue for maintenance. It is further urged by him that since the application under Section 125 of the Code of Criminal Procedure is in the nature of a quasi-judicial proceeding, as has been held by their Lord ships of the Supreme Court in Jactir Kaur V. Jaswant Singh (1) A.I.R. 1963 S.C. 1521 the provisions of the Civil Procedure Code are applicable to the case and that the respondent is therefore not entitled to maintain the action for maintenance unless she is represented by a next friend as provided by Order XXXII, Rule 1 C.P.C. But "minor", according to the explanation added to Rule 1 of Order XXXII C.P.C., means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875, where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter. Section 2 of the Indian Majority Act, 1875 lays down that nothing contained therein shall affect the capacity of any person to act in matters of marriage, dower, divorce and adoption. Clause (b) of this section excepts the religion or religious rites and usages also of any class of citizens of India from the provisions of that Act. So, the provisions of section 3 of that Act that every person domiciled in India shall be deemed to have attained his majority by having completed the age of 18 years and not before, has no application to this case. That the provisions of the Indian Majority Act, 1875, do not apply to matters relating to marriage, dower and divorce amongst Mohammadans and that a Mohammadan wife- whe has attained puberty, may file a suit for divorce without a next friend even if she is under 18 years of age has been well-recognised and can also be seen from page 283 of Mulla's Principles of Mohammadan Law, Eighteenth Edition. Section 251 of the said Principles, dealing with capacity for marriage, would show that every Mohamadan of sound mind, who has attained puberty, may enter into a contract of marriage, while it can be seen from the explanation to that section that puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. So, if a Mohammadan woman could validly contract a marriage on attainment of the age of 15 years, I fail to understand how she could be barred from maintaining an action under Section 125 Cr. P.C. unless she is represented by a guardian more so, when there is no such disabling provision either in that section or any where else in the Code. If the Legislature intended that a wife, who is under 18 years of age, should not be permitted to start proceedings under section 125 Cr. P.C. for maintenance against her husband, it would have certainly made the necessary provision therefor in that section it self as in the case of certain other proceedings covered by the Code. Reference may be made to sections 198 and 199 of the Code to illustrate the same. Section 198- dealing with prosecution for offences against marriage, lays down that where the aggrieved person happens to be under the age of 18 years, or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is a woman, who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. There is, a smilar provision in section 199 dealing with prosecutions for defamation. When it is thus seen that the Legislature has taken care to provide for representation of certain categories of persons by others in proceedings under sections 198 and 199 of the Criminal Procedure Code, it would have done the same thing even in the case of applications under section 125 Cr. P.C. But the conspicuous absence of any such embargo on a wife, who is below the age of 18 years, against applying for relief under section 125 Cr. P.C. is in my opinion, sufficient to reject the contention urged for the petitioner that the respondent is not competent to apply for maintenance under section 125 Cr. P.C. unless she is represented by a guardian, for the simple reason that she was only 15 years old at the date of her application.