SMT. WAFATAN Vs. JAMIL AHMED

JUDGEMENT

(1.) "Whether wife is entitled to claim maintenance for the minor children from the husband even though husband is ready and willing to keep the child and maintain himself, specially in cases of Mohammedans where the mother is entitled to the custody of the child even after divorce upto a particular age -

(2.) The above question stands referred to this Bench for its opinion under the following circumstances:

(3.) On November 20, 1978 Smt. Wafatan, the petitioner, filed an application under Section 125 of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) in the Court of the Addl. Munsiff-cum-Judicial Magistrate No. 2 (South) claiming maintenance for herself and her two children, a son then aged two years and a daughter aged six months, from her husband Jamil Ahmed, the non-petitioner. The learned Magistrate, however, dismissed the same on 13.4.1981 holding that the non-petitioner had neither neglected nor refused to maintain the petitioner and her children, instead, the petitioner herself was not willing to live with non-petitioner alongwith the children. The petitioner challenged the order of the Magistrate by way of a revision application under Section 397, Criminal Procedure Code to the Addl. Sessions Judges No. 2, Kota who dismissed the same on 8.2.1983. Thereupon, the petitioner filed a petition under Section 482, Criminal Procedure Code before this Court. On 20.2.1984 Kasliwal, J. (as his Lordship then was) accepted the petition and directed the non-petitioner to pay to the petitioner a sum of Rs. 50/- p.m. for each one of the two minor children towards their maintenance from the date of the filing of the application i.e. November 20, 1978 upto the attainment of majority by them. The claim for maintenance allowance for the petitioner was not pressed. This order was lateron recalled by the learned Judge on 21.7.1987 on the ground that the same had been made without giving proper opportunity of being heard to the non-petitioner.