Criminal Revn. No.1389 of 1990

25th January, 1991.

Petitioner Counsel: B. K. Banerjee and Miss Shila Sarkar, for
Respondent Counsel: Prasanta Mukherjee, .

Cases Cited:
1988 Cri LJ 142 (Raj) (Rel. on) [Para 6]
AIR 1966 SC 1342 [Para 5]

JUDGMENT

ORDER:-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 have obtained divorce from their husbands. In this instant proceeding the woman has been divorced and she has not come forward to claim any maintenance for herself u/S. 125, Cr .P.C. She has come forward with the application u/S. 125, Cr. P.C. only on behalf of her minor children. While trying to protect the rights of the divorced Muslim women, the Act of 1986 has also made provision in respect of the minor children. S. 3(b) of the Act lays down that the minor children would get maintenance from their father i.e. from the former husband of the divorced wife for a period of 2 years from the respective dates of birth of such children. Now the case of the divorced woman in this case is that although her 2 minor children have crossed the age of 2 years yet they are not in a position to maintain themselves and also that she herself is unable to maintain them without maintenance from their father. The learned counsel for the petitioner submits that if the Act of 1986 is to be correctly interpreted then the former husband of the divorced wife and for that matter the father of the minor children has no

obligation to pay maintenance to the children beyond the period of two years from the date of their birth. I am unable to accept the submission of the learned counsel. The Act of 1986, is lamentably silent as to the future of the minor children who have crossed the age of 2 years. In a welfare country it can never be the intention of the legislature that the minor children of a divorced Muslim woman should be thrown to the charity of the pedestrians for their survival. The Act of 1986 took special care of the divorced women and at the same time made provision for maintenance of the minor children till their attaining the age of 2 years. As no provision is made subsequent to that age in the Act of 1986, the mother as natural guardian of such unfortunate minor children shall have to fall back upon the all embracing and beneficial provisions of S. 125 Cr. P.C. This section provides that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself or his legitimate or illegitimate minor child whether married or not who is unable to maintain itself, shall have to pay maintenance allowance. We are not concerned with the divorced wife as she has rightly and justifiably not claimed any maintenance for herself in view of the provisions of the Act of 1986. But we are concerned with the fate of the minor children. Here in this case it is pleaded that the minor children are unable to maintain themselves and not only that, the divorced wife is also unable to maintain them without any maintenance allowance from her former husband. Thus it is clear from a comparison of the provisions of S. 125, Cr. P.C. and the provisions of the Act of 1986 that a minor child crossing the age of 2 years is not precluded from claiming maintenance from the father if it can be shown that the child is unable to maintain itself.

6. As to the 3rd point, the learned counsel for the petitioner has drawn my attention to the agreement purportedly made between the parties and inserted in Col. Nos. 6 to 11 in the Form No., 1605 which is a West Bengal Form for inserting entries in Register-C as per provision of the Act 1 of 1876. In the form filled up by the Muslim Registrar on 17-7-87 it was written. "The wife Kausar Parvin (i.e. the opp. party in this revisional application), after getting all the articles/goods returned and a sum of Rs. 2,275/- being Mehr and the maintenance allowance for the period of Iddat, accepted Khola divorce and Md. Murtaja (i.e the petitioner in this revision) divorced her. Their two daughters Jahana Sanjida aged 4 years and Shaabana alias Sitara aged 2 years are handed over to Kausar Parvin. Md. Murtaja shall remit Rs. 125/ - every month by money order within 10th of each month, till the girls attain the age of 9 years. In case of default for one month the amount of both the months at a time and in case of default of two months in remitting the maintenance, Rs. 425/- for three months (by adding Rs. 50/ -) at a time shall have to be remitted to Kausar Parvin. Kausar shall return the girls to Murtaja after they attain the age of 9 years, without any pretext or hesitation. Both the parties shall have no other claim on each other. If any of the parties claims otherwise/ violates the condition referred above, the panchayat is entitled to take necessary step/ action against him/her. All this conforms to the decision of the panchayat". Learned counsel for the petitioner contends that the form does not contemplate for putting of such an agreement. The learned counsel for the opp. party by arguing from another angle submits that he agrees with the learned counsel for the petitioner because of the fact that there cannot be any contract between the father and his children for their maintenance as such a contract would be against the spirit of public policy. Be that as it may, I find that this sort of agreement was made not without some legal force. I am elaborating the legality of the contents of the agreement. Under the Muhammedan Law the mother is entitled to the custody of her male child until he has completed the age of 7 years and of her female child until she has attained puberty (vide S. 352 of the Mulla's Muhammedan Law, 18th Edn. page 367). Although nowhere it is specifically mentioned, yet it is generally held that the age of puberty in respect of a female in Muhammedan Law is 9 years. Thus under the Muhammedan Law the wife or for that matter a divorced wife is the natural guardian of a female child till she attains the age of

puberty which is 9 years. This aspect of the Muhammedan Law is not unknown to the petitioner/husband. That is why he undertook to pay maintenance to his minor female children till they attained the age of 9 years. Even if this agreement made by the parties on 27-12-87 before the Muslim Registrar is found to be lacking judicial sanction, yet on a considered interpretation of the provisions of the Act of 1986 and the provisions contained in S.125, Cr. P.C. I find that the minor children are legally entitled to claim maintenance through their mother as guardian from their father. On this point the learned counsel for the opp. party has cited a decision of the Rajasthan High Court as reported in 1988 Cri LJ 1421, Hazi Farzand Ali v. Mst. Noorjahan. In that case Rajasthan High Court has held that the children of the divorced wife are entitled for maintenance u/S. 125 Cr. P.C. I am in respectful agreement with the aforesaid decision.

7. In the result the application fails and the same is dismissed.

Application Dismissed