Minor children of a divorced Muslim woman are entitled to maintenance from their father even after they attain the age of 2 years if they are unable to maintain themselves.

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 4½ and 2½ 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.

4. The learned Magistrate has held that the proceeding is maintainable as it relates to the claim of maintenance for the 2 minor children and he fixed the next date for evidence. The learned counsel for the petitioner Sri Banerjee has submitted that the Act of 1986 has come into force on 19-5-1986 and this Act has ousted the jurisdiction of the Court to make an enquiry u/S. 125 of the Code in respect of the divorced Muslim women and any claim for maintenance for such women and for that matter minor children born in the wedlock before divorce, shall have to be enquired into according the the provisions contained in Act of 1986. Learned counsel for the petitioner has further urged that the Act of 1986 is a Special Act and when there is a conflict between the Special Act and the General Act then the provisions of the Special Act shall prevail. His further contention is that the agreements between the parties shown in Form 'C' of the schedule to The Bengal Muhammedan and Divorces Registration Act, 1876 (Bengal Act 1 of 1876) are illegal.

5. I take the 1st two points raised by the learned counsel for the petitioner together. No doubt the Act of 1986 is a special one and, therefore, it will definitely oust the jurisdiction u/S. 125, Cr. P.C. so far it relates to the case of a Muslim woman who has been divorced. This Special Act also provides for the minor children who are not above the age of 2 years, in this regard the learned counsel has relied on a decision of the Supreme Court reported in AIR 1966 SC 1342, Commr. of Income-tax v. M/s. Shahazada Nand, Although this reported case relates to taxation matters yet the principle enunciated is that where there is a conflict between a general and a special provision, the latter shall prevail. The Act of 1986 came into force on 19th May 1986 and the intention of the legislature was made clear in the Preamble itself. The Act was made to protect the rights of Muslim women who have been divorced by, or h