1. We have heard Shri Aseem Mehrotra learned counsel appearing for the appellant, Smt. Jamilasranu S. Malek respondent No. 1 who appears in person and Mrs. Hemantika Wahi, learned counsel for State of Gujarat.
2. The appellant and respondent No. 1 who are muslims were married on 21.2.92. A son named Anis was born out of the wedlock. Thereafter, on 28.12.93, the appellant divorced respondent No. 1.
3. On 28.3.94, respondent No. 1 filed an application under Section 125 of the Code of Criminal Procedure claiming Rs. 500/-per month as maintenance for herself and Rs. 400/- per month for her son. The learned magistrate by the order passed on 31.5.97 granted maintenance of Rs. 500/-per month for respondent No. 1 and Rs. 400/- per month for her son. The said order was unsuccessfully challenged by the appellant in revision before the sessions court. In the petition filed under Section 482 of Criminal Procedure Code by the appellant herein, the High Court maintained the order granting maintenance to respon'dent No. 1 and her son. The order of the High Court is under challenge in this appeal.
4. The main thrust of the arguments of the learned counsel for the appellant is that the proceeding under Section 125 of the Cr. P.C. was not maintainable since no consent of the parties as provided under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act') had been filed. Consequentially, it was urged that the order passed by the learned magistrate as confirmed by the learned sessions judge is invalid and unenforceable. Though the learned counsel was not in a position to draw our attention to any material on record showing that this question was raised before the learned magistrate, he drew our attention to the averments in paragraph 8 of the revision petition filed in the sessions court and submitted that this point was raised before the court but has not been noticed in the order.
5. In course of hearing of the case, the learned counsel submitted that the appellant is ready and willing to pay maintenance for respondent No. 1 at Rs. 500/-per month as fixed by the learned magistrate till December, 2002, and in the meantime, respondent No. 1 may file application under the provisions of the Act before the magistrate, if so advised. He further submitted that the appellant will clear arrears of maintenance if any, payable to her. The order granting maintenance for respondent's son Anis will remain unaltered. Respondent No. 1 who is appearing in person also stated before us that she will file an application under the Act, before the magistrate.
6. Considering the submissions made by learned counsel for the parties and respondent No. 1 who is appearing in person, we dispose of the appeal by passing the order that the order of the magistrate granting maintenance for respondent No. 1 will continue till 31 st December, 2002 and the appellant will continue to pay maintenance at Rs. 500/- per month till that date. Thereafter, the order will cease to be operative. The appellant will also pay all outstanding arrears due towards the maintenance within a period of two months from today. The order of maintenance for her son Anis will remain unaltered.
7. The appeal is disposed of in the above terms.