K.M. THAKER, J.

In present petition, the petitioner has prayed, inter alia, that :

"13(B) Your Lordships may be pleased to issue an appropriate writ, order or direction regarding order passed in Misc. Criminal Application No. 90 of 2010 by Hon'ble Court of Judicial Magistrate, First Class, Upleta (District: Rajkot) on 19-9-2011 as stated in order at Annexure-A.

(C) The aforesaid order passed by Hon'ble Judicial Magistrate, First Class of Upleta in Misc. Criminal Application No. 90 of 2010 on dated 19-9-2011 be quashed and set aside.

2. The petitioner is aggrieved by order dated 19-9-2011 passed by Judicial Magistrate, First Class under Sec. 125 of Code of Criminal Procedure (hereinafter referred to as 'the Code') whereby the learned Magistrate has directed the petitioner to pay Rs.1,500/- per month to the respondent towards her maintenance and Rs.500/- towards maintenance of minor son.

2.1. The respondent No.1 is divorced wife of the petitioner. The divorce between the petitioner and respondent No. 1 came to be finalised in November, 2009 and since then the respondent No.1 stays separate with the minor son (i.e. respondent No.2) born from the wedlock with the petitioner. The minor son stays with respondent No. 1. The petitioner has also averred that his marriage with respondent No. 1 was solemnised according to Muslim Law and their divorce is also in accordance with Muslim Law.

2.2. On the ground that she is not able to maintain herself and the minor son, the respondent No.1, in or around April, 2010 (i.e. about 4 months after the divorce) filed an application seeking maintenance for herself and her son under Sec. 125 of the Code. The learned Magistrate has allowed the said application under Sec. 125 of the Code and has awarded Rs.1,500/- for maintenance to respondent No. 1 and Rs.500/- to respondent No.2. The petitioner divorced husband is aggrieved by the said order/decision dated 19-9-2011. Hence, this petition.

3. The said order is challenged on a singular and solitary ground that in view of the provisions under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereafter referred to as 'the Act') the provisions under Sec. 125 of the Code cannot be invoked and applied in case of a divorced Muslim woman and any order directing payment of maintenance to a Muslim woman who is divorced by her husband cannot be passed under Sec. 125 of the Code.

3.1. So far as the facts involved in and giving rise to present petition are concerned, the petitioner has stated, inter alia, that the petitioner married the respondent No. 1 and from their wedlock they have a minor son i.e. respondent No.2 herein.

3.2. Sometime after the birth of respondent No.2, the petitioner and respondent No. 1 parted ways and the petitioner has, as per the custom and practice of Muslim religion, divorced respondent No.1.

3.3. It is claimed that the divorce between petitioner and respondent No. 1 came to be finalised with effect from 22nd November, 2009.

3.4. The petitioner has further claimed that after divorce between him and respondent No.1 was finalised, the respondent No.1 filed an application in the Court of learned Judicial Magistrate, First Class, Upleta under Sec. 125 of the Code and prayed for maintenance. The said application came to be registered as Misc. Criminal Application No. 90 of 2010.

3.5. It is further claimed by the petitioner that the said Application No. 90 of 2010 came to be finalised in September, 2011 and by order dated 19-9-2011, learned Magistrate allowed the application by directing the petitioner to pay Rs.1500/- per month to respondent No.1, i.e. the divorced wife and Rs.500/- towards maintenance of minor son.

3.6. The petitioner is aggrieved by the said direction. Hence, present petition.

4. Mr. Y.R. Pathan, learned Counsel appeared for the petitioner and submitted that if a divorced Muslim wife wants to claim maintenance then she cannot prefer application under Sec. 125 of the Code but such application can be preferred only un