G.M. Jeelani Vs. Shanswar Kulsum and anr. - Court Judgment

Excerpt:
criminal - maintenance - sections 3, 3 (1) and 5 of muslim women (protection of rights on divorce) act, 1986 and sections 125 to 128 of criminal procedure code, 1973 and muslim law - husband preferred revision under section 127 (3) (b) against award of maintenance passed by second additional sessions judge - revision allowed by setting aside maintenance awarded to wife - wife requested court to enhance maintenance awarded to her minor daughter - same allowed by enhancing maintenance from rs. 50 to 500 - husband aggrieved by same filed revision - minor daughter entitled to maintenance till she attains majority as per provisions of indian majority act, 1875 - husband being employed in university though getting nice salary is under duty to maintain his second wife children and parents - in the circumstances maintenance to daughter to be reduced to rs. 400 per month - revision dismissed accordingly. - - the rights of the muslim women regarding maintenance and matters incidental thereto like mahro etc. it is true that section 7 of the act clearly lays down that every application by a divorced woman under section 125 or 127 of the code pending before the magistrate on the commencement of the act, shall, notwithstanding anything in the code and subject to the provisions of section 5 of the act, may be disposed of by such magistrate in accordance with the provisions of this act.order1. the present revision came to be filed under the following circumstances. the revision petitioner is one sri g. m. jeelani, hereinafter referred to as the husband. the first respondent in the revision petition is the wife and the second respondent is the daughter of the revision petitioner. they will be hereinafter referred to as the wife and minor daughter. the first respondent was married to the petitioner at mandapeta as per muslim rights on 5-5-1975. for some time they lived together resulting in the birth of the second respondent. it appears that subsequently differences arose between the parties resulting in the husband divorcing the wife by saying irrevocable talaq on 2-7-1980. subsequently the wife filed m.c. no. 45 of 1980 on the file of the learned ii additional j.f.c.m. kakinada, under section 125 crl.p.c. for maintenance for self and for her minor daughter. having heard the matter, the learned ii addl. j.f.c.m. awarded maintenance at rs. 300/- and rs. 50/- respectively to the wife and minor daughter. aggrieved by the same the husband filed crl.r.p. no. 7 of 1992 on the file of the ii addl. sessions judge, rajahmundry. the learned judge reduced the maintenance awarded to the wife from rs. 300/- to rs. 200/- while retaining the maintenance awarded to the daughter at rs. 50/-. the husband preferred crl. r.p. 1804 of 1990 under section 127(3)(b) of the crl.p.c. on the file of the ii addl. j.f.c.m. kakinada, aggrieved by the maintenance awarded in favour of the wife. having heard the matter, the learned ii addl. j.f.c.m. allowed the crl. r.p. no. 1804 of 1990 on 13-11-1990. thus it was held that the wife was not entitled to any maintenance. this order was passed in view of the muslim women (protection of rights on divorce) act 1986, in brief the 'act'. alleging that the maintenance awarded to the minor daughter at rs. 50/- per month is too small, the wife as guardian of her minor daughter filed crl. m.p. no. 786 of 1989 requesting the court to enhance the maintenance to minor daughter from rs. 50 to rs. 500/- per month. having heard the matter, the court dismissed the same as per orders dated 13th november, 1990. aggrieved by the orders of dismissal in crl. m.p. 786 of 1989 the wife filed crl. r.p. 4 of 1991 on the file of the learned iii addl. sessions judge, kakinada and as per orders dated 2-5-1991 the said crl. r.p. 4/90 was allowed enhancing the maintenance to the minor child to rs. 500/- per month from rs. 50/- aggrieved by the said orders, the husband has filed the present revision case. 2. sri venugopala rao, learned counsel for the petitioner submits that the minor daughter is admittedly about 17 years old. as per section 3(1)(b) of the act, the minor daughter is entitled to maintenance only for a period of two years from the date of her birth and consequently the orders of the learned iii additional sessions judge, are not sustainable. section 3(1)(b) of the act reads as follows : '3(1)(b) : where she herself maintains the children borne to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years-from the respective dates or birth of such children.' section 3 of the act shows that maher or other properties or muslim woman has to be given to her at the time of her marriage. section 3(1) of the act shows that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to the particulars mentioned in (a)(b)(c) and (d) of the said act. consequently, section 3 has no application so far as maintenance of minor child is concerned. 3. sri venugopala rao, learned counsel for the petitioner submits that section 5 of the act is a bar for maintainability of this application. section 5 of the act reads as follows : 'section 5 : option to be governed by the provisions of section 125 to 128 of act 2 of 1974 : if on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her-former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 - 128 of the code of criminal procedure, 1973 (2 or 1974) and file such affidavit or declaration in the court hearing the application, the magistrate shall dispose of such application accordingly. 4. section 5 deals with option to be governed by the provisions of sections 125 - 128 of the code and it deals with the question of maintenance pertaining to the divorce woman and her former husband and that has no application so far as maintenance to a minor child is concerned. thus, i find that section 5 of the act also has no application. 5. sri venugopala rao learned counsel for the petitioner submits that the preamble of the act shows that the provisions of the act have to be applied to maintenance of the minor children of the muslim parents. the preamble appended to the act reads as follows : 'an act to protect the rights of muslim women who have been divorced by, or have obtained divorce from their husband's and to provide for matters connected therewith or incidental thereto. 6. the learned counsel lays stress on the words 'matters connected therewith of incidental thereto' and submits that the question of maintenance of minor children is also governed by the provisions of the act, the preamble of the act shows that the said act was promulgated to protect the rights of muslim women who have been divorced or obtained divorce from their husbands, to provide for matters connected therewith or incidental thereto i.e. the rights of the muslim women regarding maintenance and matters incidental thereto like mahro etc. and have nothing to do with the provisions relating to the maintenance of their children. hence, i find that the preamble also has no application. 7. the learned counsel for the petitioner submits, relying upon section 7 of the act that every application under sections 125 or under section 127 of the code has to be disposed of in accordance with the provisions of the act. it is true that section 7 of the act clearly lays down that every application by a divorced woman under section 125 or 127 of the code pending before the magistrate on the commencement of the act, shall, notwithstanding anything in the code and subject to the provisions of section 5 of the act, may be disposed of by such magistrate in accordance with the provisions of this act. but since this matter pertains to the maintenance of a child, as i have already observed, the act has no application. consequently section 7 of the act also does not help the petitioner. 8. lastly, the learned counsel for the petitioner submits that even according to the respondents, the minor daughter is about 17 years old and under muslim law the mother is entitled to the custody of a male child until he completes the age of 7 years and of a female child until she attains puberty. in this case admittedly, the minor daughter has attained majority long back and consequently it is submitted that the father being the guardian of the major daughter is not entitled for the custody of the daughter and he is not bound to pay maintenance. it is brought to my notice that the husband has initiated proceedings before the ii addl. district judge, visakapatnam for the custody of his daughter and the proceedings are pending. thus as on today the minor daughter is in the custody of her mother. the first explanation appended to section 125 of the code reads as follows : (a) 'minor' means a person who, under the provisions of the indian majority act 1875 (9 of 1875) is deemed not to have attained his majority.' 9. thus, since the minor daughter is seeking maintenance under section 125 of the code by virtue of the first explanation appended to section 125 of the code, she is entitled to maintenance till she attains majority as per the provisions of indian majority act, 1875. as such i find that the minor daughter is entitled to maintenance till she attains majority as per the provisions of the indian majority act, 1875. 10. sri venugopal rao, learned counsel for the petitioner submits that in any event the increase of maintenance from rs. 50/- to rs. 500/- per month is excessive and prays that the same may be reduced. on the contra, the learned counsel for the respondent sri venkateshwara rao submits that the respondent minor daughter is studying intermediate ii year and the amount of rs. 500/- awarded to her is too meagre. 11. it is stated before me that the petitioner-husband is getting rs. 3,020/- per month as basic salary and on that amount he will also be entitled to d.a. and other allowances as per rules, he being employed in the university. it is brought to my notice that he has to maintain his second wife, children and parents. in the circumstances, the maintenance at rs. 500/- per months awarded to the minor daughter is reduced to rs. 400/- per month. with this modification, the criminal revision is dismissed. 12. revision dismissed.

Judgment:
ORDER

1. The present revision came to be filed under the following circumstances. The revision petitioner is one Sri G. M. Jeelani, hereinafter referred to as the husband. The first respondent in the revision petition is the wife and the second respondent is the daughter of the revision petitioner. They will be hereinafter referred to as the wife and minor daughter. The first respondent was married to the petitioner at Mandapeta as per Muslim rights on 5-5-1975. For some time they lived together resulting in the birth of the second respondent. It appears that subsequently differences arose between the parties resulting in the husband divorcing the wife by saying irrevocable Talaq on 2-7-1980. Subsequently the wife filed M.C. No. 45 of 1980 on the file of the learned II Additional J.F.C.M. Kakinada, under section 125 Crl.P.C. for maintenance for self and for her minor daughter. Having heard the matter, the learned II Addl. J.F.C.M. awarded maintenance at Rs. 300/- and Rs. 50/- respectively to the wife and minor daughter. Aggrieved by the same the husband filed Crl.R.P. No. 7 of 1992 on the file of the II Addl. Sessions Judge, Rajahmundry. The learned Judge reduced the maintenance awarded to the wife from Rs. 300/- to Rs. 200/- while retaining the maintenance awarded to the daughter at Rs. 50/-. The husband preferred Crl. R.P. 1804 of 1990 under Section 127(3)(b) of the Crl.P.C. on the file of the II Addl. J.F.C.M. Kakinada, aggrieved by the maintenance awarded in favour of the wife. Having heard the matter, the learned II Addl. J.F.C.M. allowed the Crl. R.P. No. 1804 of 1990 on 13-11-1990. Thus it was held that the wife was not entitled to any maintenance. This order was passed in view of the Muslim Women (Protection of Rights on Divorce) Act 1986, in brief the 'Act'. Alleging that the maintenance awarded to the minor daughter at Rs. 50/- per month is too small, the wife as guardian of her minor daughter filed Crl. M.P. No. 786 of 1989 requesting the Court to enhance the maintenance to minor daughter from Rs. 50 to Rs. 500/- per month. Having heard the matter, the Court dismissed the same as per orders dated 13th November, 1990. Aggrieved by the orders of dismissal in Crl. M.P. 786 of 1989 the wife filed Crl. R.P. 4 of 1991 on the file of the learned III Addl. Sessions Judge, Kakinada and as per orders dated 2-5-1991 the said Crl. R.P. 4/90 was allowed enhancing the maintenance to the minor child to Rs. 500/- per month from Rs. 50/- Aggrieved by the said orders, the husband has filed the present revision case.

2. Sri Venugopala Rao, learned Counsel for the petitioner submits that the minor daughter is admittedly about 17 years old. As per Section 3(1)(b) of the Act, the minor daughter is entitled to maintenance only for a period of two years from the date of her birth and consequently the orders of the learned III Additional Sessions Judge, are not sustainable. Section 3(1)(b) of the Act reads as follows :

'3(1)(b) : Where she herself maintains the children borne to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years-from the respective dates or birth of such children.'

Section 3 of the Act shows that Maher or other properties or Muslim woman has to be given to her at the time of her marriage. Section 3(1) of the Act shows that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to the particulars mentioned in (a)(b)(c) and (d) of the said Act. Consequently, Section 3 has no application so far as maintenance of minor child is concerned.

3. Sri Venugopala Rao, learned Counsel for the petitioner submits that Section 5 of the Act is a bar for maintainability of this application. Section 5 of the Act reads as follows :

'Section 5 : Option to be governed by the provisions of Section 125 to 128 of Act 2 of 1974 :

If on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her-former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 - 128 of the Code of Criminal Procedure, 1973 (2 or 1974) and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

4. Section 5 deals with option to be governed by the provisions of Sections 125 - 128 of the Code and it deals with the question of maintenance pertaining to the divorce woman and her former husband and that has no application so far as maintenance to a minor child is concerned. Thus, I find that Section 5 of the Act also has no application.

5. Sri Venugopala Rao learned counsel for the petitioner submits that the preamble of the Act shows that the provisions of the Act have to be applied to maintenance of the minor children of the muslim parents. The preamble appended to the Act reads as follows :

'An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husband's and to provide for matters connected therewith or incidental thereto.

6. The learned counsel lays stress on the words 'matters connected therewith of incidental thereto' and submits that the question of maintenance of minor children is also governed by the provisions of the Act, The preamble of the Act shows that the said Act was promulgated to protect the rights of Muslim women who have been divorced or obtained divorce from their husbands, to provide for matters connected therewith or incidental thereto i.e. the rights of the muslim women regarding maintenance and matters incidental thereto like Mahro etc. and have nothing to do with the provisions relating to the maintenance of their children. Hence, I find that the preamble also has no application.

7. The learned counsel for the petitioner submits, relying upon Section 7 of the Act that every application under sections 125 or under Section 127 of the Code has to be disposed of in accordance with the provisions of the Act. It is true that Section 7 of the Act clearly lays down that every application by a divorced woman under Section 125 or 127 of the Code pending before the Magistrate on the Commencement of the Act, shall, notwithstanding anything in the Code and subject to the provisions of Section 5 of the Act, may be disposed of by such Magistrate in accordance with the provisions of this Act. But since this matter pertains to the maintenance of a child, as I have already observed, the Act has no application. Consequently Section 7 of the Act also does not help the petitioner.

8. Lastly, the learned counsel for the petitioner submits that even according to the respondents, the minor daughter is about 17 years old and under Muslim Law the mother is entitled to the custody of a male child until he completes the age of 7 years and of a female child until she attains puberty. In this case admittedly, the minor daughter has attained majority long back and consequently it is submitted that the father being the guardian of the major daughter is not entitled for the custody of the daughter and he is not bound to pay maintenance. It is brought to my notice that the husband has initiated proceedings before the II Addl. District Judge, Visakapatnam for the custody of his daughter and the proceedings are pending. Thus as on today the minor daughter is in the custody of her mother. The first explanation appended to Section 125 of the Code reads as follows :

(a) 'minor' means a person who, under the provisions of the Indian Majority Act 1875 (9 of 1875) is deemed not to have attained his majority.'

9. Thus, since the minor daughter is seeking maintenance under Section 125 of the code by virtue of the first explanation appended to Section 125 of the Code, she is entitled to maintenance till she attains majority as per the provisions of Indian Majority Act, 1875. As such I find that the minor daughter is entitled to maintenance till she attains majority as per the provisions of the Indian Majority Act, 1875.

10. Sri Venugopal Rao, learned counsel for the petitioner submits that in any event the increase of maintenance from Rs. 50/- to Rs. 500/- per month is excessive and prays that the same may be reduced. On the contra, the learned Counsel for the respondent Sri Venkateshwara Rao submits that the respondent minor daughter is studying Intermediate II year and the amount of Rs. 500/- awarded to her is too meagre.

11. It is stated before me that the petitioner-husband is getting Rs. 3,020/- per month as basic salary and on that amount he will also be entitled to D.A. and other allowances as per rules, he being employed in the University. It is brought to my notice that he has to maintain his second wife, children and parents. In the circumstances, the maintenance at Rs. 500/- per months awarded to the minor daughter is reduced to Rs. 400/- per month. With this modification, the criminal revision is dismissed.

12. Revision dismissed.