ARORA, J. - (1.) THIS revision petition is directed against the order dated 8. 11. 93, passed by the Judge, Family Court, Jodhpur, by which the learned Judge of the Family Court sentenced the petitioner to five days imprisonment for each month's maintenance allowance remained unpaid as the petitioner failed to comply with the order dated 21. 5. 93 without sufficient cause.
(2.) MRS. Jahanara filed an application under Section 125 Cr. P. C. against her husband Mohammed Iqbal in the Court of the learned Judge of the Family Court, Jodhpur, for the grant of maintenance. It was alleged in the application that she was married to Mohammed Iqbal on 24. 7. 84 at Jodhpur as per the Muslim customs and rites. The husband used to take liquor daily and, also, used to regularly abuse her. He, also, gave beating to her mercilessly. A demand for a television was also, made by the husband which could not be fulfilled by her brother and the husband gave beatings to her on this count and ultimately, after six-seven months of the marriage, the husband left her at the parents' house. At that time she was pregnant and gave birth to Miss Rubina in her parents house. It has, also, been averred in the application that she has been neglected by her husband and is unable to maintain herself while the non-applicant (husband) has sufficient source of income of about Rs. 5,000/- per month and, therefore, she may be awarded the maintenance of herself as well as for her minor daughter Miss Rubina. The petitioner husband did not appear during the trial inspite of service and therefore, ex-parte proceedings were taken against him. The applicant, in support of her case, examined herself as AW 1 and produced in evidence AW 2 Salim Khan. The learned Judge of the Family Court relied upon the evidence produced by the applicant and after determining the income of the husband at Rs. 5000/- per month, awarded maintenance of Rs. 500/- per month to the wife and Rs. 300/- per month to the minor daughter by his judgment dated 21. 5. 93. Though the order for the grant of maintenance was passed by the learned Judge of the Family Court on 21. 5. 93 but the petitioner failed to comply with the order without any sufficient cause and, therefore, an application under Section 125 (3) Cr. P. C. was moved by the wife and the daughter for the issuance of Warrant for the levy of the amount amounting to Rs. 28,600/- and in case of default in the payment of this amount it was prayed that the non-applicant may be sent to civil jail. This application was opposed by the petitioner and the learned Judge of the Family Court, by his order dated 8. 11. 93, after giving ample opportunity to the petitioner to make payment, ordered for his imprisonment of five days for each month's default in making payment of the maintenance allowance. It is against this order that the petitioner has filed the present revision petition. It is contended by the learned counsel for the petitioner that the petitioner has given divorce to the non-petitioner in the year 1989 and a divorcee woman is not entitled for any maintenance as per the provisions of Muslim Woman (Protection of Right of Divorce) Act, 1986 (for short, 'the Act, 1986' ). It has, also, been contended by the learned counsel for the petitioner that Miss Rubina, is, also, not entitled for any maintenance after attaining the age of two years, as per the provisions of Section 3 (1) (b) of the Act, 1986. It has, also, been contended by the learned counsel for the petitioner that the recovery of the arrears of maintenance, as per Sub-section (3) of Section 125 Cr. P. C, can be made by issuing a warrant for levying the amount due in the manner provided for levying the fine. Section 4121 Cr. P. C. deals with the procedure for recovery of the amount of fine which provides that when an offender has been sentenced to a fine, the Court passing the sentence, may take action for the recovery of the fine in either or both of the following ways, i. e. , (i) issue a warrant for the levy of the amount by attachment and sale of any immovable property belonging to the offender and (ii) issue of warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both, of the defaulter. The contention of the learned counsel for the petitioner is that it is only after exhausting the provisions of Section 421 Cr. P. C. for the recovery of the amount of maintenance that the petitioner can be sent to civil imprisonment and unless the recovery proceedings under Section 421 Cr. P. C. end in failure, the petitioner cannot be sent to civil jail. Sub Section (3) of Section 125 Cr. P. C. provides that if any person so ordered, fails, to comply with the order of any such Magistrate, for every breach of the order, the Magistrate may issue a warrant for levying the amount due in the manner provided for levying the fines and may sentence him for the whole or any part of each month's allowance remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one month or until the payment if sooner be made. The powers of imposing the sentence for the default in the payment of maintenance is an addition to the issuance of warrant for levying the amount due in the manner provided under Section 421 Cr. P. C. Section 421 Cr. P. C. provided the manner how the amount is to be recovered and Sub-Section (3) authorises the Court in addition to the mode of recovery, to sentence such person who fails, without sufficient cause, to comply with the order for a term which may extend to one month or until the payment is made. The exercise of the power of sentencing the petitioner by the learned Judge of the Family Court for five days for each month's default, therefore, cannot be said to be, in any way, arbitrary, unjust or improper. The ground raised by the learned counsel for the petitioner, is, therefore, bereft of any force and deserves to be dismissed. The petitioner has challenged the validity of the order passed by the learned Judge of the family Court on the ground that he has already given divorce to the wife and, therefore, she is not entitled for any maintenance under Section 125 Cr. P. C. The order was passed on 21. 5. 93 and the petitioner, after the expiry of the period of limitation, now, cannot be permitted to raise this objection at this stage. Even otherwise, while deciding S. B. Criminal Miscellaneous Petition No. 152 of 1994 (Mohammed Iqbal vs. Smt. Jahanara and Another) today, I have already held that the order, passed by the learned Judge of the Family Court does not require any interference and if the divorce has been given by the petitioner after the grant of maintenance then the petitioner may move an application under Section 127 (1) Cr. P. C. for modification of the order and the learned Judge of the Family Court will pass the appropriate order in accordance with law on filing such an application. So far as question of granting maintenance to the minor daughter Miss Rubina is concerned, as per Section 125 Cr. P. C. and, also, as per the Muslim Personal Law, it is the personal obligation of the father to maintain his minor son and daughter. The right of maintenance of the minor children is their independent right and has nothing to do with the right of the wife granted under Section 3 (1) (b) of the Act 1986. This is a right of the wife during the weaning period and the amount payable to the wife for reward to suicide the child and has no connection with the independent right of the minor child. The petitioner is, therefore, liable to pay maintenance till the daughter attains the puberty or she is married, whichever is earlier. In this view of the matter, I do not find any merit in this revision petition and the same is hereby dismissed. .;