Shehnaj through her next friend Smt.Hajran vs Abdul Rehman

I.S. Tiwana, J. (Oral)

In the year 1991, the petitioner, a minor daughter of the respondent and her mother Hajran were awarded maintenance under section 125 Cr.P.C. by the Judicial Magistrate Ist Class at the following rates:

Petitioner .....@ Rs. 60/ P.M.

Mst. Harjan ....@ Rs. 75/ P.M.

On October 18, 1981, Mst. Hajran moved an application under section 127, Cr.P.C. on her behalf as well as that of her minor child, i.e., the petitioner for enhancement in the rates of maintenance as noted above. The trial Court accepted that application and enhanced maintenance qua both of them to the extent of Rs. 100/ each. The respondent, i.e., father of the petitioner moved a revision petition against that order of the Magistrate. The learned Additional Sessions Judge, Sangrur, vide his impugned order dated November 6, 1986, dismissed the claim of the petitioner as also that of her Mother in view of the provisions of section 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The petitioner impugns the order. It is not disputed that Mst. Hajran had been divorced by the respondent prior to her filing the application under section 125 Criminal Procedure Code.

Mr. Arun Nehra, learned counsel for the petitioner urges that in view of Section 7 read with section 3 of the 1986 Act, referred to above, the claim of Mst. Hajran could justifiably be denied but the said section or the Act itself had nothing to do with the case of the petitioner as she concededly was, more than two years of age at the time of the filing of the application under section 127, Cr.P.C. by Mst. Hajran.

The only submission of Mr. Markan in reply is that since it was the mother who had filed the application on behalf of the petitioner and not the petitioner herself, the Additional Sessions Judge rightly dismissed the application. I see no merit in this submission of Mr. Markan. The petitioner is concededly a minor and the application on her behalf had essentially to be made through a next friend or a lawful guardian which Mst. Hajran was. Merely because Mst. Hajran filed the application the right of the petitioner under the above noted section which undisputably is an independent right of hers, could not possibly be defeated.

For the reasons recorded above, I allow this petition and while setting aside the impugned order of the Additional Sessions Judge dated November 6 1986, direct that the petitioner would be paid maintenance in accordance with the order of the trial Magistrate dated October 15, 1985.