MOHAMMAD MURTAZA Vs. KAUSAR PARVIH

JUDGEMENT

(1.) The petitioner has by this revisional application challenged the maintainability of a proceeding u/s. 125(1) of the Code of Criminal Procedure for short Code, read with S. 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986, hereinafter referred to as Act of 1986.

(2.) The Opp. Party filed the petition u/s. 125(1) of the Code read with S.3 of the Act of 1986 before the Sub-Divisional Judicial Magistrate, Chandanagar which was registered as Misc. Case No. 191 of 1989. She inter alia stated in that petition that she is the mother of Sanjiba and Sitara, 2 minor daughters aged about 41/2 and 21/2 years respectively and the O.P. is the father of the said minors. On 27-12-87 the husband of the petitioner and father of the said minor had divorced her and since then the said minors are residing under the care and custody of the petitioner at village Teelinepara, P.S. Bhadreswar. The O.P./father since the date of divorce has not paid a single paisa towards the maintenance of the minor children though he is legally and morally bound to do so as the minor children are unable to maintain themselves. In order to avoid future anomalies, the O.P./father agreed to pay monthly maintenance for the said minor children at the rate of Rs. 125/- per month in presence of some respectable persons including the Kazi. In spite of that agreement, the O.P./father has not paid anything. Hence the petitioner claimed maintenance allowance at the rate of 125/ - per month for the minor children. It was argued before the learned Magistrate that maintenance was not claimed for the divorced wife but for the minor children who are unable to maintain themselves and, therefore, the proceeding is maintainable u/s 125(1) of the Code read with S.3(1) of the Act of 1986.

(3.) The O.P./father challenged the maintainability of the proceeding before the learned Magistrate on the ground that the minor children are more than 2 years of age and maintenance for them cannot be claimed as per provision of S.3(1) of the Act of 1986.