The right of a Muslim child to claim enhanced rate of maintenance under Section 127, Cr. P. C. is not taken away by the Muslim Women (Protection of Rights on Divorce) Act, 1986.

IMMANENI PANDURANGA RAO, J.

( 1 ) THE husband is the revision petitioner. His wife filed M. C. 41/83 in the court of the II Metropolitan Magistrate, Hyderabad for maintenance u/s. 125, Cr. P. C. for her herself and her three minor children. The learned magistrate has awarded maintenance at Rs. 200. 00 per month for the wife and Rs. 100. 00 per month for each of the three children. The husband preferred Crl. R. C. 128/85 to this court and the maintenance was reduced to Rs. 125. 00 per month for the wife while confirming the maintenance awarded to the children.

( 2 ) WHILE so, the wife and children filed M. C. No. 60/89 on the file of the II Metropolitan Magistrate, Hyderabad u/s. 127, Cr. P. C. claiming enhancement of maintenance at the rate of Rs. 500. 00 per month for each of them. The wife was divorced on 23-5-89. The learned magistrate has enhanced the maintenance to Rs. 300. 00 per month for the wife from 27-7-88 to 23-5-89. So far as the minor children are concerned, the learned magistrate enhanced the maintenance from Rs. 100. 00 Per month to Rs. 175. 00 per month each from 27-7-88 to 23-5-91.

( 3 ) AGGRIEVED by the said decision, the husband has preferred this revision direct to the High Court. The learned counsel for the respondents raised a preliminary objection as to the maintainability of the revision on the ground that the petitioner should have first preferred the revision to the Sessions Judge before approaching this Court. Section 397 Cr. P. C. confers concurrent jurisdiction on the High Court as well as the Sessions Judge in dealing with the revisions against the orders passed by any subordinate criminal court. Though the normal procedure which is adopted is that any person aggrieved by the order of the Metropolitan Magistrate must prefer revision to the Sessions Judge and then if he is aggrieved by the order file a revisions in the High Court, since S. 397, Cr. P. C. confers concurrent jurisdiction on the High Court also, I hold that the revision cannot be dismissed in limini on the ground that the revision filed in the High Court without exhausting the remedy before the Sessions Judge is not maintainable.

( 4 ) AS regards the merits of the case, the learned counsel for the petitioner argued that with the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act) the right to claim maintenances or enhancement of maintenance by the divorced women is taken away. In support of his contention he relied upon the Full Bench Decision of our High Court in Usman Khan Bhahamani v. Fathimunnisa Begum 1990 Cri LJ 1364 : (AIR 1990 Andh Pra 225 ). It is held in that case that a divorced Muslim wife cannot claim maintenance under S. 125, Cr. P. C. after the passing of the Act and that the liability of the husband is limited for and during the period of Iddat.

( 5 ) THE Full Bench held that "a combined and harmonious reading of the provisions of Ss. 3 to 7 of Muslim Women (Protection of Rights on Divorce) Act, 1986 already demonstrates, that the general object of the legislations is to bring the law of maintenance payable to the wife in consonance with the principles of Muslims law and, therefore, the provisions of Ss. 125 to 128 of the Code will have no application to the Act of 1986 except in case of option exercised by the parties u/s. 5 of the Act to any such claim of maintenance made by the wife u/s. 125 of the Code.

( 6 ) RELYING upon that passage the learned counsel for the petitioner submitted that in the application for enhancement of maintenance filed u/s. 127 of Cr. P. C. is not maintainable. A majority of the Full Bench while holding that a divorced Muslim wife cannot claim maintenance u/s. 125 of the Crl. Procedure Code after passing the Act, held that the liability of the husband is limited for and during the period of Iddat. Therefore, the order of the learned magistrate enhancing the maintenance is perfectly correct. But the mistake committed by him is that inst

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