- (1.) THIS Criminal Misc. Petition No. 786 of 2011 under section 482, Cr.P.C. against the order dated 25.1.2011 of Special Court Women Atrocities and Dowry Cases, Kota and quashing the proceedings pending before the ACJM No.4 in case No. 04/08 wherein the same relief has been sought by the non petitioners by way of application under sections 12, 22, 23, 23(2) of the Protection of Women from Domestic Violence Act, 2005 whereas the application for interim maintenance under section 125. Cr. P.C. has already been decided by the Family court vide order dated 9.5.2008.
(2.) BRIEF facts of this criminal misc. petition are that the petitioner got married to the respondent No.1 on 13.5.2004 as per the is lamic shariat, known as 'Nikah". After consuming the marriage they lived together happily. A child was born out of their wedlock. But the relations between them could not be maintained for long and began quarreling after two years. The wife of the petitioner began to stay at her father's house without any leason, when all efforts had failed to mainimum the relation between spouses. Eventually the petitioner had to file a suit for res- titutioi of conjugal rights before the family court. After filing of the application for restitution of conjugal rights in family court Kota and when the notices were issued to the respondent she filed a complaint under section 156(3), Cr. P.C. for the offence under sections 498 A and 406, IPC on 27.9.2006 wherein all family members of the petitioner have been implicated. The respondent No.l filed an application under section 125, Cr. P.C. for maintenance in Family Court Kota. After hearing both the parties, the Family court awarded Rs. 500/- per month for the child per month and in respect of the respondent No.l her prayer was rejected vide order dated 9.5.2008. Thereafter the respondents filed application for interim maintenance under section 12 of the Protection of Women from Domestic Violence Act, 2005 before the court of Judicial Magistrate No.4 Kota. The petitioner submitted reply to this application. Hearing both the parties the court passed an order dated 17.4.2008 wherein the application for interim maintenance was rejected. The respondent No.l filed revision petition before the Sessions Judge Kota, who transferred the same to the court of Special Court Women Atrocities and Dowry Cases, Kota. The court after considering the facts and circumstances of the case vide order dated 25.1.2011 directed the petitioner to pay interim maintenance in the amount of Rs. 2000/- per month to the respondent from the date of filing of the application. Aggrieved by the order dated 25.1.2011 the petitioner filed the above criminal misc. petition for quashing the order of interim maintenance to the respondent No.1. Mr. K.A. Khan, learned counsel appearing for the petitioner has argued that the divorced Muslim lady cannot claim for monthly maintenance continuously and for indefinite period of time even after Iddat period under section 125, Cr. P.C. If the divorced Muslim lady unable to maintain herself, she can claim under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 during Iddat period and under section 4 of the Act a divorce muslim lady is entitled for maintenance after Iddat period. The Muslim lady has been given option to be governed by the provisions of sections 125 to 128, Cr. P.C. under the Muslim Women (Protection of Rights on Divorce) Act. The learned counsel for the petitioner has contended that although the option was given in the Family Court but the order dated 9.5.2008 was passed according to Muslim law, hence the petitioner has not raised any objection against this order. The learned counsel has further contended that two remedies cannot be exercised at a time for the same relief. Despite passing of the order by the Family Court granting maintenance to the child, the respondent No. 1 also avail the remedy of filing application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Judicial Magistrate rejected the application but on a revision petition filed by the respondent the revisional court allowed interim maintenance Rs. 2,000/- per month to the respondent No.1 from the date of filing of the application. The learned counsel has further argued that this order is liable to be set aside in the facts and circumstances of the case.
(3.) MR . Pradeep Shrimal, Public Prosecutor for the State and Mr. A.K. Khan, learned counsel appearing for the non-petitioners have categorically opposed the arguments of the learned counsel for the petitioner. They have stated that the revisional court after considering the material and the decisions relied on by the parties, rightly allowed the application for interim maintenance granting maintenance in the amount of Rs. 2,000/- per month from the date of application.;