TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner has challenged the proceedings initiated under Section 125 Cr. P. C. by the non-petitioner wife. THE petitioner and nonpetitioner are Muslim and, therefore, are governed by Muslim Law. THEy are governed by the provisions under Section 125 Cr. P. C. to limited extent also. The non-petitioner submitted the first application under Section 125 Cr. P. C. in the court of Additional Chief Judicial Magistrate, Nathdwara on 14. 1. 2002 and prayed for maintenance @ Rs. 1000/- per month. The said petition under Section 125 Cr. P. C. being Criminal Original Case No. 32/2002 was decided by the learned trial court vide order dated 31. 10. 2002 whereby maintenance @ Rs. 1000/- per month from the date of application was awarded for non-petitioner's son till he attains majority. However, the non-petitioner-wife's maintenance application was allowed to the extent that the petitioner shall pay Rs. 1000/- per month to the non-petitioner from 14. 1. 2002 upto the period of 'iddat' only. This order attained finality. However, the trial court in the same order observed that for other relief about future maintenance, the non-petitioner will be free to move another application. After the said order of the trial court dated 31. 10. 2002, the non-petitioner submitted an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act of 1986' ahead) and again prayed for the grant of maintenance @ Rs. 1000/- per month. This petition numbered 321/2002 was allowed by the trial court vide order dated 7. 7. 2003 and the trial court awarded maintenance to the non-petitioner @ Rs. 1000/- per month from 23. 11. 2002 until the non-petitioner marries. The said order of trial court dated 7. 7. 2003 was challenged by the petitioner by preferring revision No. 13/2003 before the Additional Sessions Judge, Nathdwara, who vide his order dated 24. 8. 2004 allowed the revision filed by the petitioner and the order of the trial court dated 7. 7. 2003 was set aside. After above two decision in the matter for grant of maintenance, the petitioner submitted another application under Section 125 Cr. P. C. , which according to the petitioner has been filed by the non-petitioner to harass the petitioner by abuse of the process of law.
(3.) ACCORDING to the learned counsel for the petitioner, the non-petitioner in her statement recorded in one case No. 38/2003 in the court of District Judge, Bhilwara she gave her statement on oath that she is Post Graduate and she is doing stitching work and is maintaining herself and her son. She also stated that the petitioner is only a Secondary pass. In her cross-examination, she specifically stated that it is wrong to say that she cannot maintain herself. Even she stated that she did not file any petition for getting maintenance from the petitioner. ACCORDING to the learned counsel for the petitioner, the non-petitioner sought complete relief under Section 125 Cr. P. C. for maintenance but as per the personal law, the non-petitioner could have been awarded maintenance upto 'iddat' period, which has been awarded by the trial court vide order dated 31. 10. 2002. The non- petitioner availed the opportunity to get more maintenance in view of the observation made in the order dated 31. 10. 2002 and moved an application under Section 3 of the Act of 1986 and got order in her favour, which was set aside by the revisional court and that order has not been challenged by the non-petitioner, therefore, all her rights have already been stand decided. In view of the above reasons, the filing of another petition under Section 125 Cr. P. C. is nothing but an abuse of the process of court. Learned counsel for the petitioner also submitted that in view of Section 5 of the Act of 1986, the petition filed by the non-petitioner under Section 125 Cr. P. C. is not maintainable. Learned counsel for the non-petitioner vehemently submitted that vide order dated 31. 10. 2002 the learned trial court gave liberty to the non-petitioner to move another application in view of legal bar against grant of maintenance beyond 'iddat' period, therefore, the non-petitioner submitted an application under Section 3 of the Act of 1986, which was allowed by the trial court by order dated 7. 7. 2003 but unfortunately that order was set aside by the revisional court. The non-petitioner was advised to move application under Section 125 Cr. P. C. and, therefore, she is not abusing the process of court by availing lawful remedy available to her. The learned counsel for the non-petitioner relied upon the judgment of the Hon`ble Supreme Court delivered in the case of Danial Latifi & Anr. vs. Union of India reported in 2001 (2) Apex Court Journal 423 (S. C.) wherein the Hon'ble Supreme Court after considering the provisions, namely, Section 3 (1) (a) and 4 of the Act of 1986 held that a Muslim husband is liable to make reasonable and fair provision for the future of divorced wife which include her maintenance as well such reasonable and fair provision extending beyond the 'iddat period' must be made by the husband. The Hon`ble Supreme Court clearly held that the liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined to iddat period and further held that a divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit according to Muslim law. Not only this, as per laws if any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance on refusal to the aggrieved party i. e. the divorced Muslim woman. According to the learned counsel for the non- petitioner in view of the judgment of the Hon`ble Apex Court delivered in the case of Danial Latifi (supra), the non- petitioner is entitled to proceed with the maintenance claimed under the provisions of Code of Criminal Procedure. I have considered the submissions placed by the learned counsel for the parties and have perused the facts which have been referred in detail above. ;