A.K. Sen Gupta, J. - (1.) This revisional application is directed against the order dated December 4, 1987, passed by the learned Judicial Magistrate, First Court, Tamluk. This application was moved before the learned single Judge who was of the view that there is a conflict of the judicial decision as to whether a child who is staying with his divorcee mother, is entitled to be maintained by the father arid there is no Division Bench decision on this point and, accordingly, the matter was referred to the Division Bench. The facts leading to this application are that the petitioner was married to Islam Ali Khan, the opposite party no. 1, according to Mohammedan law and out of the wedlock one son and one daughter were born to them. As the husband allegedly neglected and failed to maintain, the petitioner moved an application under Sec. 125 of the Criminal Procedure Code for herself and for two minor children before the Sub -Divisional Judicial Magistrate, Tamluk. The said application was contested by her husband. The learned Judicial Magistrate passed an order dated December 3, 1979 allowing the application for maintenance and directing the opposite party to pay maintenance allowance of Rs. 60/ - per month to the petitioner and Rs. 40/ - each for her son and daughter aggregating to Rs. 140/ - per month.
(2.) The husband being aggrieved by the said order moved a revisional application before this Court, on May 5, 1980 praying for stay of operation of the said order. Rule was issued and interim stay was granted on condition that the husband, the opposite party, shall go on paying a consolidated sum of Rs. 70/ - per month towards maintenance month by month. Ultimately on September 1, 1981, the said Rule was discharged and the opposite party no. 1 was directed to pay the entire amount of maintenance as ordered by the learned Magistrate. In execution of the said order the opposite party paid the maintenance to the petitioner and her two children upto September, 1985.
(3.) On August 12, 1985, the petitioner made an application for enhancement of the said maintenance as according to the petitioner when the original order of maintenance was made on December 3, 1979, the minor son was 2 1/2 years old and minor daughter was 1 1/2 years old but since then they have grown up and attained 8 years and 7 years respectively and they are reading in a Primary School, it has therefore become impossible to meet their expenses for food, clothing, education and medical treatment out of the meagre amount of maintenance allowance originally granted.;