ABDUL HAMID Vs. AMINA

JUDGEMENT

(1.) This is an appeal against the judgment dated 7.1.88 passed by the Judge, Family Court, Jaipur.allowing in part the application under section 125 Cr. P.C. filed by the respondent Smt. Amina, and granting maintain of Rs. 250.00 to Smt. Amina and Rs. 150.00 for her daughter, total Rs. 400.00 per month, w.e.f. 26.5 1986.

(2.) The appellant Abdul Hameed was married to respondent Smt Amina in accordance with Muslim Law and custom, in 1972. Since the respondent was minor, she continued to stay with her parents till 1976. Thereafter, she went to live with her husband (Abdul Hameed), the appellant. A daughter was born from the wedlock. Thereafter, the appellant Abdul Hameed started to ill-treat the respondent and therefore,she had to file an application under section 125 Cr P.C. which was decided by the Judicial Magistrate on 6.2.1979, rejecting her claim for maintence, but awarding maintenance @Rs. 15.00 from 17.5.1977 to 5.2.1979 and Rs. 35.00 from 6.2.1979 per month onwards. Thereafter also, the respondent Smt. Amina did not receive any amount of maintenance for her daughter as well and ultimately, she filed the present petition under section 125 Cr. P.C. before the Family Court, on 26.5.86 Notice was issued and thereafter, after recording evidence, learned Judge, Family Court, granted maintenance, as aforesaid. It is against this order that the present appeal has been filed.

(3.) Learned counsel for the appellant has very vehemently argued that application under section 125 Cr. P.C. was not maintainable because earlier application filed by the respondent, under section 125 Cr. P.C. with regard to maintenance for herself, had been dismissed by the learned Judicial Magistrate on 6.2.1979 and that the respondent did not peeler any appeal thereafter and the order dated 6.2 1979 had become final. Even as against maintenance granted to the daughter, the application under section 125 Cr. P.C. is not maintainable and the application should have been filed under section 127 Cr P.C. but since no application under section 127 Cr. P.C. bad been filed nor the application had been amended, no relief could have been granted even with regard to the maintenance to the daughter.