M.C Jain, J.:— This petition is directed against the order of the learned Munsif and Judl. Magistrate, Bhilwara dated 18-6-87, whereby, the learned Magistrate has awarded maintenance to the three children of the respondent Msi. Noor Jahan.
2. On 8-1-85 the applicant-non-petitioner Mst. Noor Jahan filed an application under Sec. 125 Cr. P.C stating, inter alia, that she was married with the non-applicant-petitioner in the year 1970 and the Mehar was agreed to the tune of Rs. 5000/-. Out of their wedlock, she gave birth to three children from the loin of Hazi Farzand Ali (the husband). According to the petitioner, they are aged 6, 8 and 11 years and two are getting education in llnd Standard and IVth standard. The learned Magistrate granted the maintenance to the tune of Rs. 300/- per month in respect of the three children on the basis of the version of the present petitioner himself.
3. Learned counsel for the petitioner submitted that the right of children is ancillary to the mother's right and mother has no right to move under Sec. 125. The application u/sec. 125 Cr. P.C was not maintainable. He referred to Sec. 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act) and also referred to the provision contained in Sec. 4 of the Act.
4. The above contention of the learned counsel for the petitioner, in my opinion, is absolutely unfounded and devoid of any force. Sec. 125(1) Cr. P.C makes a provision for maintenance of wife, children and parents. Clauses (b) and (c) of sub-Sec. (1) of Sec. 125 give independent right to the children to move an application claiming the maintenance. The right of such children is independent to the right to their mother. All the Clauses (a), (b), (c) and (d) have used the conjunction ‘or’. This conjunction has significance. If any person having sufficient means neglect or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself.
5. Then the learned Magistrate is empowered under sub-Sec. (1) of Sec. 125 Cr. P.C upon proof of such neglect or refusal to order such person to make a monthly allowance for the maintenance of such children as such monthly rate not exceeding Rs. 500/- as a whole and the Magistrate is further empowered to pay the same to such person as the Magistrate may from time to time direct. In the face of this provision, the argument advanced by the learned counsel for the petitioner is untenable. Sec. 7 of the said Act is a transitional provision and it applies to the application by a divorced woman under Sec. 125 and 127 of the Code of Criminal Procedure, 1973. Sec. 7 does not apply to the application moved on behalf of the children, who were minors and-unable to maintain themselves. If the application by a divorced woman under Sec. 125 and 127 Cr. P.C is pending on the commencement of the Act, then such an application is required to be disposed of under the provisions of the Act. Sec. 7 is an over-riding provision. To such a pending application, the provision of Sec. 125 Cr. P.C would not apply and that application has to be disposed of in accordance with the provisions of the Act subject to the provision of Sec. 5 of the Act. So far as Sec. 4 is concerned, it may be stated that Sec. 4 does not at all deal with the children claiming maintenance. First proviso to Sec. 4(1) deals with the liability of the children where such divorced woman has children. The Magistrate shall order such children to pay maintenance to her and in the event of such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her the second proviso to Sec. 4 deals with the situation when the parents are unable to maintain such a divorced woman. Sub-Sec. (2) of Sec. 4 deals with the situation when the parents and relatives are not able to maintain such a divorced woman. If the divorced woman has no relative or such relatives have not enough means to pay her maintenance, in that situation, a direction can be given to the State Wakf Board for payment of maintenance. The Act has been enacted with a view to protect the rights of Muslim Women, who have been divorced or have obtained divorce from their husbands and to provide for matters connected there with or incidental thereto, so far as the maintenance is concerned, No such provision has been referred to me in the Act dealing with the grant of maintenance to the children.
6. Learned counsel for the petitioner also submitted that there is no prayer in the petition for award of maintenance to the children and the application is not on behalf of the children. The copy of the petition has been shown to me. Having read to petition, I am of the opinion that the amount of maintenance has been claimed by the non-petitioner for herself as well as for her three minor children. This is a joint application moved by her on her behalf and on behalf of her children and a prayer has been made for the award of maintenance to the tune of Rs. 500/- for her minor children and herself. Thus, the application can be treated as an application for maintenance by each of her minor children u/sec. 125 Cr, P.C
7. The learned counsel for the petitioner in the end submitted that the amount awarded is excessive, looking to the petitioner's income, I need not enter into the question of income at this stage. It is an interlocutory order passed on the basis of the petitioner's version. Besides that disposal of the application can be expedited.
8. No other point survives for consideration.
9. This petition therefore has no force, so it is hereby dismissed. However the learned Magistrate is directed to decide the matter within a period of two months as far as possible.
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