JUDGMENT R.K. Rastogi, J.
1. This is an application for quashing the order of interim maintenance dated 7.12.2004 passed by the Family Court, Agra in favour of the opposite party No. 2 in Case No. 129 of 2004 under Section 125 Cr.P.C.
2. The facts relevant for disposal of this application are that the applicant Mufees and Smt. Zeenal were husband and wife and admittedly a divorce had taken place between them on 9.12.2003. Km. Anam, who is their daughter, aged about one and half years in the year 2004, filed an application for award of maintenance at the rate of Rs. 3000/- per month. The application was contested by the applicant. A prayer was also made for awarding interim maintenance vide application paper No. 6B and in that application it was also alleged that the father of Km. Anam was earning Rs. 10000/- per month from the business of shoes and Rs. 5000/- per month as rent. The applicant in his objection had taken a plea that under Section 3(l)(b) of Muslim Women (Protection of Rights on Divorce) Act, 1986 (called as 'Act') maintenance can be given for a period of two years only from the date of birth of the child and since Km. Anam's age was more than two years on the date when the application under Section 125 Cr.P.C. was filed, she was not entitled to any maintenance under the above provision. He also stated that he was ready to maintain her if she is given into his custody.
3. Learned Judge Family Court, after hearing both the parties, awarded a sum of Rs. 1000/- per month as interim maintenance. The present application has been filed by the applicant to quash that order.
4. I have heard the learned Counsel for the applicant as well as the learned A.G.A. for the State at the stage of admission and this application is being decided finally at this stage.
5. Learned Counsel for the applicant has relied upon Section 3 of the Act. The relevant portion of which runs as under:
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce-- (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-
(a)** ** **
(b) where she herself maintains the children born to her before or after her divorce , a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children.
6. It was contended by the learned Counsel for the applicant that in view of above provision Km. Anam was not entitled to any maintenance under Section 125 Cr. P. C. after attaining the age of two years. He also cited before me a ruling of Hon'ble Supreme Court in Saheb Khan K. Malek v. Jamilashranu S. Malek and Anr. 2002 (48) ALR 243 in support of his contention. The A.G.A. in reply referred to another ruling of Hon'ble Supreme Court in Noor Saba Khatoon v. Mohd. Quasim 1997 Crl. L.J. 3972 SC.
7. I have gone very carefully through these rulings. It is to be seen that claim of a divorced Muslim wife for maintenance of child is limited to a period of two years only from the date of his birth under the aforesaid Sub-clause (b) of Section 3(1) of the Act, if she claims any amount for maintenance of her child in her personal capacity, but the claim of child in his or her own personal capacity is not barred under the above Act and the same view has been expressed by Hon'ble Supreme Court in both the above cases. In the present case the application for maintenance has not been moved by the mother of Km. Anam but she has filed this application in her own capacity as Km. Anam under the guardianship of her mother. Such an application filed in the personal capacity of Km. Anam, who is minor daughter of the applicant, is not barred. Under the aforesaid Clause (b) of Section 3(1) of the Act and is maintainable under Section 125 Cr.P.C. and the learned Judge Family Court did not commit any illegality by awarding interim maintenance to that minor daughter at the rate of Rs. 1000/- per month. There is no illegality in the order passed by the learned Judge Family Court. There is no force in the application under Section 482 Cr.P.C. and it is dismissed at the admission stage.