Child of divorced Muslim woman entitled to maintenance from father.

An important question of law, that too, of general importance is as to whether a minor child of divorced Muslim wife is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973, from its father even after the child attained the age of more than two years. In other words, the important question of law is whether a divorced woman can claim maintenance from her former husband for the child born to her through that husband after the child attained the age of two years under Section 125, Cr.P.C., despite the provisions of Section 3(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short "the Act of 1986")

2. The petitioner/husband has presented this revision before this Court, challenging the order dated 16-2-1993, passed in Crl. R. C. No. 62 of 1992, on the file of Principal Sessions Judge, Cuddalore, granting maintenance of Rs. 150/- per month to the 2nd respondent herein, minor Yashmin, by setting aside the order dated 12-3-1992, passed in M.C. No. 4 of 1991, on the file of Judicial Magistrate No. 1, Ulundurpet, dismissing the petition filed by the 1st respondent herein Mrs. Piyare, the divorced wife of the petitioner, claiming maintenance for herself and for her child, the 2nd respondent herein

3. The 1st respondent Piyare, originally filed a petition under Section 125, Cr.P.C., on 9-4-1991, in M.C. No. 4 of 1991, on the file of Judl. Magistrate No. 1, Ulundurpet, on her behalf and on behalf of her child, aged about 3 years, the 2nd respondent herein, claiming maintenance @ Rs. 350/- p.m. and Rs. 150/- p.m. respectively. On 12-3-1992, this application was dismissed by the learned Magistrate, as not maintainable

4. Challenging this order, the wife, the 1st respondent herein, on behalf of both the respondents herein filed Crl.R.C. No. 62 of 1992 before the Prl. Sessions Court, Cuddalore, in the year 1992. By order dated 16-2-1993, the Principal Sessions Judge, party allowed the revision, holding that though the wife, being a divorced Muslim Woman, is not entitled to claim maintenance, under the Act of 1986, the child of three years born to the wife through her former husband is entitled for the award of maintenance, and directing the petitioner/husband to pay the maintenance of Rs. 150/- p.m., to the child, the 2nd respondent herein from the date of the petition presented in M.C. No. 4 of 1991, before the learned Judicial Magistrate No. 1, Ulundurpet. Hence, this revision by the husband, the petitioner

5. The short facts would be summarised as follows :-

The wife Piyare, the 1st respondent herein married the petitioner Rahamathulla/husband on 31-8-1986. The marriage was performed, according to Islamic rites in the presence of Wahab Pallivasal Jamads of Ulundurpet. For some years thereafter, both the petitioner and the 1st respondent lived happily as husband and wife. Of this wedlock, the child Yashmin, the 2nd respondent herein was born to them in the year 1988. Since the husband/petitioner was not satisfied with the 'sreedhana' provided by the family of the wife/1st respondent at the time of marriage, he demanded for more money and jewels, even after the child was born. When the wife was not able to meet his demands as her parents were not in an affluent circumstances, the petitioner/husband started ill-treating the 1st respondent/wife. He finally snatched away all the jewels worn by the wife and drove her and the child, aged about 3 years. Then the respondents herein had to take shelter under the parents of 1st respondent. Finding it very difficult to maintain themselves, the wife issued a legal notice to the husband, claiming maintenance, for which the petitioner/husband sent a reply, containing false allegation. Thereafter, the husband married another woman and has been living with her. In such a circumstance, the wife filed the petitioner claiming maintenance at Rs. 350/- for herself and Rs. 150/- for her child

6. This petition was resisted by the husband/petitioner,