Gujarat High Court
Ghanchi Husen Umar Udiya vs Ghanchanbai Marum Daud Jadia And Ors. on 22 November, 1989
Equivalent citations: (1990)1GLR431
JUDGMENT J.U. Mehta, J.
1. Notice pending admission to respondent No. 4 Miss Valikarimwala, Addl. Public Prosecutor waives service of notice for respondent No. 4.
2. The petitioner has challenged the order passed by the learned Judicial Magistrate, First Class, Junagadh in favour of the minor children i.e. opponents Nos. 2 and 3 herein for maintenance at the rate of Rs. 150/- per montyh each i.e. Rs. 300/- per month from the date of application i.e. 28-9-1984. The order was passed by the learned Magistrate on 18-4-1989. Being aggrieved by the order passed by the learned Judicial Magistrate, Junagadh, the petitioner preferred Criminal Revision Application before the Sessions Court, Junagadh. The learned Sessions Judge, Junagadh by his judgment and order dated 12-9-1989 confirmed the order passed by the learned Magistrate and dismissed the Criminal Revision Application filed by the present petitioner.
3. Learned Counsel appearing for the petitioner submitted that in view or the provisions contained in Section 5 of the Criminal Procedure Code, Section 125 will not apply to minor children in this case in view of the personal law i.e. Muslim Women (Protection of Rights on Divorce) Act, 1986. Section 5 of the Criminal Procedure Code reads as under:
Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force.
4. Miss Valikarimwala, learned Addl. Public Prosecutor invited my attention to the judgment delivered by Mr. Justice B.S. Kapadia, on 25-9-1987 in Criminal Misc. Application No. 1883 of 1987 wherein it has been held that Sub-section (1) of Section 3 in terms states that divorced women shall be entitled to the said rights and they are so unequivocal in terms that there is no ambiguity on the same. The rights conferred by Clauses (a), (b), (c) and (d) of Section 3 are conferred on the divorced women and not to anybody else. In that view of the matter, the right to claim maintenance for children under Section 125, Criminal Procedure Code, 1973 has not been affected by any of the provisions of the Act including the provisions of Section 3(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
5. In the above view of the matter, I am of the opinion that the provisions of Section 5 of the Criminal Procedure Code will not be attracted to the facts of the present case. I, therefore, confirm the order of maintenance passed by the learned Judicial Magistrate, First Class, Junagadh and confirmed in revision by the learned Sessions Judge, Junagadh. The Special Criminal Application is therefore, dismissed. Notice is discharged.