- (1.) C. A. Rahim, J. A maintenance peti tion was filed by Smt. Zaitoon (respondent No. 3) against her husband Habib (petitioner) with the allegation that she is the legally married wife and out of the wed lock a daughter, namely, Km. Shahana Par-veen (respondent No. 4) was born. The mar riage took place 12 years ago prior to 2-8-1988. When the gjrl was about 5-6 years old both of them were deserted. 3-4 years after the marriage the petitioner Habib eloped with one woman and remained untraced for some time. When he was found out Smt. Zaitoon's brother tried to obtain main tenance for Smt. Zaitoon and her daughter which was refused. Application for main tenance was filed claiming Rs. 300/- for her self and Rs. 200/- for her children. In written statement filed on 19-5-1989 Habib has stated that he has divorced her about one year and nine months back. So she cannot claim maintenance under Section 125, Cr. P. C. Objection was ruled out and the trial Court, 1st Additional Civil Judge, Junior Division, Bulandshahar in Case No. 240 of 1995 allowed the maintenance at the rate of Rs. 300/- from the date of communication of the divorce, i. e. 19-5-1989. He also allowed Km. Shahana Parveen to receive main tenance at the rate of Rs. 200/- from the said date of application.
(2.) A revision was filed by Habib, the present petitioner, which was dismissed on 21-6-1997 being Criminal Revision No. 310 of 1996. Being aggrieved Habib filed this writ petition. Learned counsel Sri S. K, Chaturvedi appearing for thepetilioner has submitted that since Smt. Zaitoon was divorced, in view of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, in short the Act, she is only entitled for the maintenance during the period of Iddat by her former husband and the daughter will get maintenance for two years from the date of her birth. In this connection he has referred the case of Sadiq Ali v. Addl. Ses sions Judge, Basti, 1994 U. P. Criminal Rulings 688 with the case of Mohammed Yamin v. State of U. P, 1992 U. P. Criminal Rulings 231. In the decisions it was held that due to transitional provision under Section 7 of the Act application pending by the divorced woman under Section 125 or 127, Cr. P. C. shall be disposed of by the learned Magistrate in accordance with the provisions of this Act subject to the provisions of Section 5 of this Act. The said Section is clear that it determines the right of a woman already divorced prior to the commencement of the Act, i. e. 19-5-1986. It has no application in cases where a woman is divorced after commencement of the Act. So the decisions referred by the learned counsel have no application. In the instant case it has been rightly held that the divorce was effected on the date of communication by filing written statement on 19-5-1989 much after the commencement of the Act and in these types of cases where a divorce is affected after the date of commencement of the Act, whether the maintenance case under Section 125, Cr. P. C. was pending on the date of commencement of the Act or not, a muslim lady shall be entitled to receive maintenance till the date of divorce or till the date of communication of the divorce whichever is later. In that context I find that the decisions of the lower revisional Court has no infirmity.
(3.) THE next contention of the learned counsel about the entitlement of the main tenance of the child born out of the former husband will be for a period of two years only is based on misconception of Section 3 of the Act. In that Section right of a divorced lady has been determined besides her entit lement of maintenance during Iddat period. She would be entitled to receive main tenance for a period of two years of the child from the date of birth of the child out of former husband if she herself maintains the said child. It does not confine the right of children to receive maintenance from their father after two yeras under Section 125, Cr. P. C. Section 3 of the Act only entitles a divorced lady to receive maintenance for her children for limited period and for the rest of the period, according to Section 125, Cr. P. C. the children will receive main tenance from their father. Section 3 of the Act has no application on the right of the child to receive maintenance after the age of two years. Learned counsel has then submitted that Section 5 of the Act is a bar for the application of the provisions of the Criminal Procedure Code in cases where Muslim Women Act is applicable. But Sec tion 5 of the Act is limited to the cases where the right is exercised by divorced muslim lady under Section 3 of the Act and not under Section 125, Cr. P. C.;