IMPORTANT POINT
Proceedings under Section 125 of the Code can be initiated by the divorced Muslim wife and she can claim monthly maintenance after Iddat period from her divorced husband as long as she does not remarry.

JUDGMENT

Vipul M. Pancholi, J.—This petition is filed under Article 227 of the Constitution of India with a prayer to quash and set aside the order dated 29.11.2014, passed by the learned Judge, Family Court, Godhra, below application Exh.15 filed in Criminal Misc. Application No.460 of 2013, and thereby, to quash the proceeding of Criminal Misc. Application No.460 of 2013, which is filed by respondent No.2 herein under the provisions of Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). The petitioner has alternatively prayed to transfer the proceedings of Criminal Misc. Application No.460 of 2013 from the learned Family Court at Godhra to learned Family Court at Ahmedabad.

2. Brief facts leading to the filing of present petition are as under:

2.1. The marriage of the petitioner and respondent No.2 was solemnized on 25.04.2004 as per the rites and rituals of Muslim religion. That a baby boy was born on 10.04.2006 out of the said wedlock. It is the case of the petitioner that on account of the disputes and differences between the husband and the wife, petitioner husband gave divorce to the respondent No.2 on 25.04.2013. The petitioner husband had sent the declaration of divorce by courier along with three cheques of dated 25.04.2013 for an amount of Rs.10,000/each towards the maintenance for the period of Iddat. The said cheques had been deposited by respondent No.2. Thereafter, respondent No.2 initiated the proceedings under the provisions of the Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act of 2005’) in September 2013, wherein she has sought for Rs.20,000/per month towards the maintenance and other expenses for her son and Rs.20,000/per month towards the rent of the residential accommodation. The respondent No.2, thereafter, initiated the proceedings under subsection (1) of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the ‘Act of 1986’ for short). In the said proceedings also, the respondent No.2 has prayed for an amount of Rs.1 crore towards the future maintenance. The grievance of the petitioner is that without disclosing the aforesaid proceedings, the respondent No.2 has preferred an application under the provisions of Section 125 of the Code before the learned Family Court at Godhra and prayed for maintenance of Rs.50,000/per month. The petitioner, therefore, moved an application Exh.15 before the learned Family Court with a prayer to reject the application filed by respondent No.2 seeking maintenance under Section 125 of the Code. However, the said application Exh.15 has been rejected by the larned Family Court and therefore the present petition is preferred before this Court by the petitioner – husband.

3. Heard learned advocate Mr. Nirad Buch for the petitioner and learned APP Ms. HB Punani for respondent No.1 – State of Gujarat.

4. Learned advocate for the petitioner mainly contended that when the respondent No.2 has initiated the proceedings under the provisions of Section 3 of the Act of 1986, she cannot initiate the proceedings under the provisions of Section 125 of the Code and therefore the learned Family Court ought to have allowed the application Exh.15 submitted by the petitioner by holding that the application under the provisions of Section 125 of the Code is not maintainable. Learned advocate for the petitioner further submitted that the Act of 1986 is a Special Act and therefore it would prevail over the Code and when the respondent No.2 has chosen to proceed against the petitioner under the provisions of the Act of 1986, subsequent application under the provisions of the Code, cannot be entertained. Learned advocate further submitted that respondent No.2 has sought for the monetary relief for future maintenance in her application filed under the Act of 1986 and therefore once such an application is made for future maintenance, an application for monthly maintenance under some other provis