IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1252 OF 2001 WRIT PETITION NO.1252 OF 2001 WRIT PETITION NO.1252 OF 2001. Shekusaheb Nabisaheb Nadaf. .. Petitioner. versus 1. Sardarbi Shekusaheb @ Alisaheb Nadaf. 2. Shabbir Shekusaheb Nadaf. 3. The State of Maharashtra. ..Respondents. .... Mr.N.J.Patil, for the Petitioner. Ms. Badadare, i/b. P.R. Arjunwadkar, for the Resondent Nos.1 and 2. Smt.P.P.Shinde, APP, for the Respondent-State. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 2ND SEPTEMBER, 2008. : 2ND SEPTEMBER, 2008. : 2ND SEPTEMBER, 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of the learned Counsel appearing for the parties were heard on the last date. The first and the second Respondents filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code") for grant of maintenance. The Petitioner is the husband of the first Respondent. The second Respondent at the relevant time was a minor. The said application was opposed by the Petitioner by contending that there was already a divorce (Talaque) between the Petitioner and the first Respondent. The learned Magistrate by an order dated 11th April 1983 allowed the application and directed payment of interim maintenance of Rs.150/- per month to the first Respondent and Rs.65/- per month to the second Respondent-son. In the said order, the learned Judge : 2 : 2 : 2 : noted that the first Respondent was a divorced wife and that the Petitioner had not come out with the case of her re-marriage. 2. An application was made by the Petitioner by invoking section 127 of the said Code for modification of the said order. The modification was sought on the ground that after passing of the earlier order, the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "the said Act of 1986") had come into force in the year 1986 and therefore, the first Respondent had no right to claim the maintenance. The second ground was that on 21st August 1992, the second Respondent attained the age of majority. The learned Magistrate by order dated 17th January 1995 allowed the said application and quashed the earlier order passed granting maintenance in favour of the first and the second Respondents. The first and the second Respondents preferred a Revision Application which has been allowed by the impugned Judgment and Order dated 16th February 2000. 3. The learned Counsel appearing for the Petitioner placed reliance on a decision of Andhra Pradesh High Court in the case of Smt. Shamsunnisa Begum v/s G. Subban Basha and Another, decided on 29th June 1994, : 3 : 3 : 3 : which holds that when a Muslim wife is already divorced, an order passed under section 125 of the said Code in her favour prior to coming into force of the said Act of 1986 will stand cancelled in view of the applicability of the provisions of the said Act of 1986. The submission is that in view of the said Act of 1986, the first Respondent was never entitled to claim any maintenance under section 125 of the said Code. The second submission is that admittedly the second Respondent has attained majority on 21st August 1992 and therefore, from that day, he is no longer entitled to maintenance. The learned Counsel appearing for the Respondent supported the impugned Judgment and Order. 4. In the present case, the original order under section 125 of the said Code granting maintenance was passed on 11th April 1983. The said Act of 1986 came into force in the year 1986. The said Act provides that after commencement of the said Act of 1986, the Muslim divorced wife cannot apply for maintenance under Chapter IX of the said Code and it is only under the provisions of the Act of 1986 she can claim relief. It will be necessary to refer to the decision of Full Bench of this Court in the case of Karim Abdul Rehman Shaikh v/s Shehnaz Karim Shaikh and Others [2000 (3) Mh.L.J. 555 ]. The Full Bench of this Court considered the various : 4 : 4 : 4 : questions as regards applicability of the said Act of 1986 and the effect thereof. The second question formulated by the Full Bench and the answer recorded by the Full Bench is material for consideration. The said question and the answer read thus :- "The 2nd question ii) Whether the Muslim Women Act has the effect of invalidating the orders/judgments passed under section 125 of the Code i.e. whether the Muslim Women Act operates retrospectively so as to divest parties to vested rights ? Answer ii) The orders passed under section 125 of the Code prior to the enactment of the Muslim Women Act are not nullified by reason of coming into force of the Muslim Women Act. Such orders are binding on both sides and can be executed under section 128 of the Code. The Muslim Women Act does not divest the divorced woman of the right to get maintenance under section 125 of the Code vested in her by reason of orders of the competent Court passed prior to its coming into : 5 : 5 : 5 : force." 5. The Petitioner-husband has invoked section 127(1) of the said Code which provides that maintenance allowance fixed under section 125 can be varied on the proof of change in circumstances. In view of what is held by the Full Bench, the earlier order granting maintenance in favour of the first Respondent-wife could not have been modified on an application under section 127(1) of the said Code. Therefore, the learned Additional Sessions Judge is right to that extent. 6. Under section 125 of the said Code, maintenance is payable to a child only till he attains majority. The only exception is in a case where the child by reason of any physical and mental abnormality or injury is unable to maintain itself. 7. In the present case, it is not in dispute that the second Respondent has attained the age of majority on 21st August 1992. It is not the case that even after attaining the majority by a reason of physical or mental abnormality or injury he is unable to maintain himself. 8. Therefore, with effect from 21st August 1992, the Petitioner will not be liable to pay maintenance to : 6 : 6 : 6 : the second Respondent-son. However, the liability of the Petitioner to pay maintenance to the first Respondent under order dated 11th April 1983 will continue. 9. Hence, the impugned order will have to be modified to the extent as discussed above. Hence, I pass the following order :- (1) The impugned order is modified and it is directed that interim maintenance will be payable to the second Respondent under order dated 11th April 1983 only till 21st August 1992 and thereafter, the liability to pay maintenance to the second Respondent under the order dated 11th April 1983 will cease to exist. (2) Rest of the impugned order is affirmed. (3) Rule is partly made absolute in above terms with no orders as to costs. [ A.S.OKA, J. ] A.S.OKA, J. ] A.S.OKA, J. ]