A minor child of a divorced Muslim woman retains the right to claim maintenance beyond two years under S.125 of the Cr. P. C., unaffected by S.3(b) of the Act of 1986.

1. 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 S.125 of the Code of Criminal Procedure, 1973 (for short "the Cr. P. C.") from his or her father even after he or she has 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 or children born to her from that husband before or after her divorce even after the child or children have attained the age of two years under S.125, of the Cr. P. C. despite the provisions of S.3(b), of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short "the Act of 1986").

2. The undisputed facts are that the petitioner Mst. Noor Jehan married Salim Haji Shakoor on 8-5-1983 and the petitioner No. 2 Baby was born some where in 1984 from the wedlok of the said marriage. The petitioner No. 1 Mst. Noor Jehan was divorced by the non - applicant No. 2 herein Salim Haji Shakoor on 22-8-1983 and thus the petitioner No. 2 Baby was born to Mst. Noor Jehan after the divorce from her former husband - non - applicant No. 2. Both the petitioner No. 1 Mst. Noor Jehan, divorced Muslim woman, and her daughter Baby born from her former husband, namely, non - applicant No. 2 Salim Haji Shakoor, filed an application on 18-8-1986 before the Court of Judicial Magistrate First Class, Mehkar claiming maintenance under S.125 of the Cr. P. C. In the said application the claimants stated that the non - applicant No. 2 has neglected to maintain them and they have no independent income of their own to maintain themselves and, therefore, the maintenance at the rate of Rs. 500/- per month should be awarded to them. In the application various incidents of mental cruelty and harassment were given, but the same are not relevant for the present purpose.

3. The non - applicant No. 2, who was the non - applicant No. 1 in the proceedings under S.125, of the Cr. P. C. before the trial Court, contested the application filed by his former wife and the child born from the said wedlock, and denied the demand of maintenance made by the applicants. He further submitted that he has no income of his own as alleged by the applicants. He further submitted that he himself is dependant on the income of his father and still is taking education. The non - applicant, the non - applicant No. 2 herein, set up a legal objection that on the face of the provision contained in S.3, of the Act of 1986, the application filed by the applicants under S.125, of the Cr. P. C. is wholly misconceived.

4. The trial Court proceeded with the inquiry of the proceeding under S.125, of the Cr. P.C. and held that the wife has failed to prove that her relation with the non - applicant - husband is still in subsistence. The trial Court found that the non - applicant has proved that he has divorced the applicant No. 1 and she being a divorced woman, her application is not tenable under S.125 of the Cr. P. C. The trial Court also found that the applicant has failed to prove that she has been refused or neglected by the non - applicant or that she is entitled to get the maintenance from him. The Trial Court also found that the applicant No. 1 has not proved that the non - applicant has sufficient means to pay the separate maintenance. Accordingly the trial Court by the order dated 26-7-1991 dismissed the application filed by the applicants.

5. Dissatisfied with the said order of the trial Court passed on 26-7-1991 the applicants filed a revision application before the Court of Sessions