JUDGMENT 1. - A short but interesting question of law has arisen in this petition under Section 482 Cr. PC filed by Shri Jamaluddin. The controversy raised in the case has assumed a great importance in view of passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act). 2. The facts of the case in narrow compass are that the petitioner Jamaluddin was married to Mst. Lalli, non-petitioner and both are governed by Mahomedan Law. Smt. Lalli submitted an application on July 18, 1985 under Section 125 Cr. PC, against the petitioner for grant of maintenance allowance to herself and her two children. Out of two children, one is daughter aged 12 years and another is son aged 10 years. According to Mst. Lalli, the parties were married 20 years back and the afore-mentioned two children were born during the lawful wedlock between the parties. The attitude of the petitioner Jamaluddin was cruel towards her and she was turned out of their matrimonial home. Smt. Lalli thereafter, was maintaining herself and her children by borrowing and she had no means of livelihood. She also went to her in-laws house on July 5, 1985, in the village of petitioner Jamaluddin and to the Panchas for granting her maintenance but the husband declined to give any maintenance. It was further alleged that Jamaluddin had also married another girl, who was the daughter of Dina Teli. The income of Jamaluddin was nearly Rs. 2,000/- p.m. 3. Jamaluddin contested the above application and submitted that he had no source of income. He was dependent on his own parents. It was also alleged that Smt. Lalli was a woman of dis-repute and she had given birth to an illegitimate son and was leading her life by in-famous means. Jamaluddin though admitted that he had married with another woman but submitted that she had already died. The learned Munsif and Judicial Magistrate, Sawaimadhopur, by order dated October 21, 1986, took the view that Smt. Lalli had already been divorced by Talaq by Jamaluddin and under the provisions of the Act of 1986 she herself was not entitled to any maintenance. The learned Magistrate did not find any force in the contention of Jamaluddin that the son born to Mst. The learned Magistrate did not find any force in the contention of Jamaluddin that the son born to Mst. Lalli was illegitimate and further held that under Section 112 of the Evidence Act, there would be a presumption of legitimacy of child who was born during continuance of lawful wedlock. Jamaluddin would have to produce evidence in order to rebut the above presumption. Learned Magistrate also held that Mst. Lalli had shown the income of Jamaluddin as Rs. 2,000/- p.m. while Jamaluddin has taken the plea that he has no income, but this matter could only be decided after the evidence is led by the parties. The learned Magistrate, in these circumstances, thought it fit to award Rs. 200/- p.m. i.e. Rs. 100/- p.m. to each child for their maintenance till the final disposal of the petition filed under Section 125 Cr. PC. The above maintenance has been granted from April 1, 1986. 4. Aggrieved against the above order this petition has been filed under Section 482 Cr. PC. Mr. Gaffar Ali appearing on behalf of the petitioner Jamaluddin vehemently contended that the judgment of learned Magistrate was clearly against the provisions of the Act of 1986. It was submitted that under Section 3 (l) (b) a muslim woman was only entitled to the maintenance of her children for a period of two years from the respective dates of birth of such children. It was submitted that the Act of 1986 was passed in order to remove the doubts raised by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 and to reiterate the principles contained in the Muslim Personal Law. Section 3 started with non-obstante clause and clearly provided that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to such maintenance and other sums which have been provided in various sub-section and clauses of Section 3 itself. It was further submitted that Section 5 of the Act of 1986 clearly provided for an option to be governed by the provisions of Sections 125 to 128 of Act No. 2 of 1974 and in the absence of such option being exercised by both the parties, the provisions of the Code of Criminal Procedure cannot apply. It was further submitted that Section 5 of the Act of 1986 clearly provided for an option to be governed by the provisions of Sections 125 to 128 of Act No. 2 of 1974 and in the absence of such option being exercised by both the parties, the provisions of the Code of Criminal Procedure cannot apply. It was further argued that the Act of 1986 is a special law and if there was any conflict between the provisions of the special law and the general provisions contained in the Code of Criminal Procedure Special Law would prevail. It was also submitted that the petitioner Jamaluddin was only liable to provide maintenance to Mst. Lalii for the children for a period of two years from their birth which has already expired and after that period Mst. Lalli was not entitled to any maintenance under the Muslim Law. It was also argued that Jamaluddin is the lawful guardian of the two children and as Mst. Lalli was not prepared to handover the custody of the two children to the petitioner, no order for maintenance of the children can be passed against the petitioner. 5. On the other hand, Mr. Shahid Hasan appearing on behalf of Mst. Lalli submitted that the Act of 1986 only contained provisions regarding a muslim woman and it did not affect any rights of the children to claim maintenance under the Muslim Law or under the Code of Criminal Procedure. It was argued that there was no prohibition under the Act of 1986 for not allowing maintenance to the children and it only provided for a muslim woman that she could claim maintenance for a period of two years only for her children. I have given my thoughtful consideration to the arguments advanced by learned counsel for both the parties. The Muslim Personal Law (Shariat) Application Act, 1937 was brought into force on October 7, 1937. Under section 2 of this Act, it was provided that for the matters mentioned in Section 2 where the parties are muslims they shall be governed by the Muslim Personal Law (Shariat) after coming into force of the above Act. The Muslim Personal Law (Shariat) Application Act, 1937 was brought into force on October 7, 1937. Under section 2 of this Act, it was provided that for the matters mentioned in Section 2 where the parties are muslims they shall be governed by the Muslim Personal Law (Shariat) after coming into force of the above Act. It was only with regard to the matters contained in Section 3 of the above Act it was necessary to make a declaration before the prescribed authority if the parties wanted to obtain the benefit of the provisions of Section 2 i.e. the application of Muslim Personal Law (Shariat) in their case. Under Section 2 of the Shariat Act matters relating to intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, Jian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). Thus so far as the above position of law is concerned, it is clear that where the parties are Muslims they would be governed by Muslim Personal Law in respect of matters mentioned in Section 2 and which also includes marriage, dissolution of marriage, maintenance, dower etc. Now so far as the rights of muslim woman are concerned by Act of 1986, Section 3 has superseded all other laws made in this regard. Section 3 of the Act of 1986 deals with the right of a Muslim woman to ciaim maintenance for herself and in that regard provision has been made that a divorced Muslim woman shall be entitled to a reasonable and fair provision and maintenance be made and paid to her within the Iddat period by her former husband. Now the main controversy which has been raised in the case in hand before me is regarding the scope, effect and impact of clause (b) of sub-section (1) of Section 3 of the Act of 1986. It would be proper to reproduce the above provision : 3. Now the main controversy which has been raised in the case in hand before me is regarding the scope, effect and impact of clause (b) of sub-section (1) of Section 3 of the Act of 1986. It would be proper to reproduce the above provision : 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. The contention of Shri Gaffar Ali, learned counsel for the petitioner is that the above language of clause (b) of sub-section (1) of Section 3 clearly provides that where a divorced woman herself maintains the children born to her before or after her divorce a reasonable and fair provision for maintenance can be made and paid to her by former husband for a period of two years from the respective dates of birth of such children. It has been submitted that the scheme of the above Act of 1986 further is that if the parties want to be governed by Sections 125 to 128 of the Cr.P.C. then the option is to be exercised by them in accordance with Section 5 of the Act of 1986. It has been further contended that a provision has been made under sub-Section (2) of Section 4 of the Act of 1986 that where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives have no enough means to pay the maintenance then the Magistrate can direct the State Wakf Board to pay such maintenance as determined by him. Mr. Gaffar Ali thus submitted that under the scheme of the above Act of 1986 there was no right to Mst. Lalli, who was a divorced muslim woman to claim any maintenance for the two children after a period of two years of their birth and she could seek her remedy elsewhere. It was submitted by Mr. Gaffar Ali-that provisions of Section 125 Cr.P.C. can be applied and Mst. Lalli, who was a divorced muslim woman to claim any maintenance for the two children after a period of two years of their birth and she could seek her remedy elsewhere. It was submitted by Mr. Gaffar Ali-that provisions of Section 125 Cr.P.C. can be applied and Mst. Lalli can only resort to any remedy by moving a petition under the Guardian and Wards Act in Civil Court or get maintenance from the Wakf Board. 7. In my view, the problem raised in this case is altogether of a different kind. So far as the position of Mst, Lalli as divorced muslim woman is concerned, there remains no matter of controversy or scope of argument after the Act of 1986 and now she is only entitled to maintenance for the period of Iddat and so far as the children are concerned for a period of two years from their birth and this period of two years is also provided under the Muslim Personal Law because the Muslim woman feeds the infant by her own milk. However, the question is as to what provision is contained under the Muslim Personal Law or Shariat for giving maintenance to a Muslim child. In this regard the Rule is as under:- "A person even though he is poor shall be bound to maintain his children and grandchildren till the time of weaning but after that the duty to maintain the children and grand-children shall, if they are not possessed of property from which they can be maintained (but not otherwise) be as follows; (1) In the case of boys who have not attained puberty and unmarried girls relations in the following order shall be bound to maintain them; (a) the father; (b) the mother, if the father is necessitous and the mother is not poor; (c) the nearest grand-parent, paternal or maternal if- (i) the father is necessitous and the mother is poor; and (ii) the grand-parent is not poor. (2) In the case of an adult son who is poor and is disabled by infirmity or disease or is insane, the father is liable to maintain him. (3) The illegitimate sons below puberty and illegitimate unmarried daughters shall be maintained only by the mother." 8. (2) In the case of an adult son who is poor and is disabled by infirmity or disease or is insane, the father is liable to maintain him. (3) The illegitimate sons below puberty and illegitimate unmarried daughters shall be maintained only by the mother." 8. Now, so far as the Rule of guardianship under the Mahomedan Law is concerned it is of three kinds:- (1) for the purpose of marriage; (2) for the person of minor; and (3) for the property of the minor. In the case in hand before us we shall examine the law with regard to the rule of Hizanat or custody of the minor child under the Muslim Law Right to the custody (hizanat) of the person of a minor which is of course subject to the provisions of the Guardian and Wards Act, 1890, shall belong in the case of a boy below 7 years of age and of a girl below puberty (whether married or unmarried) to the family relations in an order in which the mother stands at No. 1 and thereafter maternal grand mother how high so ever and then paternal grand-mother and thereafter other relations. In default of the above mentioned female relations then come the paternal relations in a particular order in which the father comes in the first order and thereafter other relations. There can be no manner of doubt that the above provisions are subject to the provisions of Guardian and Wards Act, 1890 where the paramount interest is the welfare of the minor. In determining the welfare of the minor, the personal law governing the child is one of the important considerations. 9. Thus, now in the background of the above mentioned provisions of Muslim Personal Law as well as the Act of 1986 the position in my view boils down to this that Mst. Lalli is entitled to the Hizanat or personal custody of the daughter upto the age of puberty. Now so far as the son is concerned, Mst. Lalli as mother was entitled to keep the custody upto the age of 7 years as of right but then thereafter she is entitled to keep the son with her till the father Jamaluddin files any petition under the Guardian and Wards Act and obtains an appropriate order for the custody of the son. Mst. Lalli as mother was entitled to keep the custody upto the age of 7 years as of right but then thereafter she is entitled to keep the son with her till the father Jamaluddin files any petition under the Guardian and Wards Act and obtains an appropriate order for the custody of the son. Mst. Lalli, in these circumstances, is lawful guardian for keeping the custody of the two minor children and that being so Jamaluddin, who is the father of the two children, is bound to pay maintenance under the Muslim Personal Law also and it would not make any difference even if the children are not living with Jamaluddin. There is no prohibition under the Muslim Personal Law or under the provisions of the Act of 1986 that the children, who are in the Hizanat or lawful custody of the divorced muslim wife are not entitled to claim any maintenance from their father. As already mentioned above the first and fore-most duty to maintain his children and grand-children lies on the father and after him on the mother in case the father is necessitious and the mother is not poor. I see no prohibition under the provisions of Act of 1986 in case a divorced muslim wife moves a petition for the maintenance of her children against the father under Section 125 Cr. PC. The prohibition in the Act of 1986 is only against the divorced muslim wife if she is claming maintenance for herself subject of course to the period of Iddat, but she cannot be denied a right of maintenance claim on behalf of the children in the capacity of a lawful guardian or a person holding the custody of minor children in a lawful manner under the provisions of Shariat. So far as the minor children are concerned they are not at fault and any body, who would be entitled to keep their custody in a lawful manner must alone be entitled to claim maintenance from the father, at least upto the time when the father actually takes the minors in his own custody or gets a lawful order from the guardianship court or by other competent civil court. I therefore, held that Section 3(l)(b) of the Act of 1986 cannot be a bar for Mst. I therefore, held that Section 3(l)(b) of the Act of 1986 cannot be a bar for Mst. Lalli to claim maintenance on behalf of the children and the order passed by the learned Magistrate calls for no interference. Before parting with the case I may refer to some decisions where maintenance has been allowed to divorced muslim wife from the husband where the children were in the custody of mother. However, I will not deal with those cases in detail as all these cases are prior to coming into force of the Act of 1986. These cases support the view taken by me so far as the principles governing the rules of maintenance to children under the Muslim Personal Law is concerned. 10. In Muniammal v. Venkataramanachari, AIR 1943 Madras 768 . it has been held as under: "A wife leading an adulterious life is not entitled to maintenance But where she has the custody of a child and has to maintain it and it is not shown that at any time when the child was living away from him the husband wanted the child to go to him and the child refused to live with him, she is entitled to the cost of maintaining the child till in due process of law the husband is able to maintain the custody of the child." 11. In Dinsab Kasimsab v. Mohammad Hussen and Another, AIR 1945 Bombay 390 . it has been observed as under: "Among the Hanafis mothers hizanat or right of custody of a minor son ends with the completing of his seventh year, so that as soon as he attains that age his father becomes his legal guardian, and the right to his custody (hizanat) passes from his mother to his father. Irrespective of his right to custody, the responsibility of maintaining his minor sons rests primarily upon the father. He is bound to maintain his sons until they have attained the age of puberty, so long as he is in a position to do so and the children have no independent means of their own. In other words so long as the father is not the legal or appointed guardian of his sons and, therefore, not entitled to their custody their residence with him is not a condition precedent to his obligation to maintain them. In other words so long as the father is not the legal or appointed guardian of his sons and, therefore, not entitled to their custody their residence with him is not a condition precedent to his obligation to maintain them. But the position would be different where the father is the guardian and as such entitled to the custody of his children. In that case he can insist upon their residing with him and refuse to give them separate maintenance, unless it is found that by reason of his cruelty, lunacy, or other adequate reason he is unfit to have the custody of his children." 12. In Allah Rakhi and Another v. Karam Ilahi, AIR 1933 Lahore 969 . it has been observed as under:- "Where the minor daughters of a Mohamedan are in the custody of their mother who is the lawful guardian though divorced, the offer of the father to maintain the children on condition that they are entrusted to his custody amounts to a refusal within the meaning of Section 488 and the father is bound to maintain them. Though it is not the function of a criminal Court to decide questions as regards the right to guardianship of children, there is no reason why it should not take notice of the fact that the mother is (as in this case) their lawful guardian under the personal law and that the father is not prima facie entitled to demand their custody." 13. In Abinash Chander Kanshi Ram v. Smt. Sushila Devi, AIR 1962 Punjab 274 . it has been observed as under: "The position of a child who has not attained the age of discretion or who is not of its own free will or volition living away from the father is peculiar. If such a child is kept in custody by the mother and is prevented from returning to the father, it cannot be said that the child is at fault and that its conduct has disentitled it to maintenance. Even if a child prefer to live with the mother due to natural affection or attachment for her, that would not affect the liability of the father to maintain the child. Even if a child prefer to live with the mother due to natural affection or attachment for her, that would not affect the liability of the father to maintain the child. In such circumstances, where the father objects to the custody of child and asserts his own legal right the proper course for the father would be to apply for its custody, but so long as the custody of the child remains with the mother he cannot refuse to pay maintenance for the child irrespective of the fact whether or not the mother has a right to be maintained by him. The question whether the mother or the father is entitled to the custody of the children cannot be decided in a summary manner in proceedings under Section 488 of the Code of Criminal Procedure." 14. In the result, this petition under Section 482 Cr. PC has no force and is accordingly dismissed.Petition dismissed. *******