ORDER
Shambhoo Singh, J.
1. This petition under Section 482 of the Cr. P.C. is directed by the petitioner non-applicant husband against the order dated 25.3.1997 passed by C.J.M., Ratlam in M.J.C. No. 30/95 whereby his application dated 28.10.1996 was dismissed.
2. The facts of the case, in brief, are that the respondent/applicant Farida Bi (wrongly typed as Faniha Bi) was married to the petitioner on 14.4.1993. On 17.7.1996, the respondent filed an application under Section 125 of the Cr.P.C. for grant of maintenance allowance against the petitioner in the Court of C.J.M., Ratlam. On 2b.10.1996 the petitioner made an application that he had divorced the respondent on 2.9.1996, therefore, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the Act’), her application under Section 125, Cr.P.C. was not maintainable. Learned C J.M. after hearing both ‘ parties passed the impugned order on 25.3.1997 and held that the respondent was not divorced woman on 17.6.1996, when the application under Section 125, Cr.P.C. was made, therefore, the provisions of the Act were not applicable and the application under Section 125, Cr.P.C. was maintainable and rejected the application. This order is being challenged in this petition.
3. Mr. Bohra, learned Counsel for the petitioner submitted that after filing of application under Section 125 of the Cr.P.C. by the respondent, the petitioner divorced her, therefore, her application filed under Section 125 of the Cr.P.C. was not maintainable in view of ‘the Act’ which had come into force on 19.5.1986. The learned C.J.M. committed error in holding that as the respondent was validly wedded wife on 17.6.1996 when the application under Section 125 of the Cr.P.C. was made, therefore, the Act would not apply. Mr. Ahiwasi, learned Counsel for the respondent, supported the impugned order and contended that the respondent had not been validly divorced, therefore, the application under Section 125 of the Act was maintainable.
4. I considered the arguments advanced by Counsel for both sides and perused the record. It is not disputed that the respondent was validly married wife of the petitioner on 17.6.1996, when the respondent made application under Section 125, Cr.P.C. for grant of maintenance allowance. The petitioner in reply to this application filed on 2.9.1996 declared that he had divorced the respondent. On dispute being raised, the petitioner served registered notice on 14.9.1996 reiterating that he had divorced her. Her parents also admitted this fact in their statements made in Criminal Case No. 132/95 registered on the report of respondent against the petitioner. The learned Magistrate considering oral and documentary evidence held that the petitioner divorced the respondent in the month of September, 1996. It is thus clear that on 17.6.1996 when this application was filed, the respondent was legally wedded wife, therefore, this application filed under Section 125, Cr.P.C. was maintainable.
5. Plain reading of Section 3 of the Act makes it clear that this section has overriding effect on other laws including Section 125, Cr.P.C. It has been provided under Section 7 of the Act that the pending applications filed under Section 125, Cr.P.C. on the commencement of the Act shall be governed by the provisions of the Act. The applications filed by the Muslim wives, of the Act under Section 125, Cr.P.C. the moment Talaq is pronounced and her status changes she becomes of divorced woman, the provisions of the Act would be applicable and the applications would not be prosecutable under Section 125, Cr.P.C. unless both parties exercise their options under Section 5 of the Act and declare in writing that they would prefer to be governed by the provisions of Sections 125 to 128 of the Cr.P.C. The case of the respondent will be governed by the provisions of Section 125 of the Cr.P.C. for the period from the date of applications i.e., 17.6.1986 to the date of declaration of Talaq i.e., 14.9.1986. The respondent shall also be entitled to the maintenance for the period of Iddat, i.e., three lunar months. The respondent is, therefore, entitled to maintenance under Section 125 of the Cr.P.C. for the period. If the respondent wants maintenance allowance for the post Iddat period, she will have to make application under Section 4 of the Act against the relatives and Wakf Board as the case may be. The husband was liable to maintain his wife up to Iddat period. After Iddat period the liability of the former husband ceases and he cannot be directed to pay maintenance allowance thereafter. The finding of the learned CJM that as the respondent was legally wedded wife on 17.6.1986 when application under Section 125, Cr.P.C. was made, therefore, her applications would continue to be maintainable notwithstanding that she has been divorced after filing of applications, is erroneous. As observed earlier, Section 3 of the Act has overriding effect over other laws including Section 125, Cr.P.C, therefore, the moment, Talaq is declared, the Act comes into play.
6. In this case, as stated above, Talaq was given on 14.9.1986, therefore, the Act would come into play on 14.9.1986 and thereafter, the applications under Section 125, Cr.P.C. would not be maintainable. However, she is entitled to claim maintenance under Section 125, Cr.P.C. from 17.6.1986 to 14.9.1986 and also for Iddat period [See 1994 JLJ 381, Abdul Rashid (Dr.) v. Farida]. The respondent has two options either to continue this application filed under Section 125, Cr.P.C. for maintenance of the period 17.6.1986 to 14.9.1986 and Iddat period i.e., three lunar months or she could withdraw this application and make fresh application under the provisions of the Act. The decision in case of 1995 JLJ 110=1 (1995) DMC 209, Peer Mohd. v. Hasinabee, does not apply to this case. In that case, the applications made by Muslim wife under Section 125, Cr.P.C. was decided and maintenance order was passed against the husband. The husband challenged the maintenance order in revision and during the pendency of revision divorce was given. Before pronouncement of Talaq, the wife had acquired vested right to recover maintenance and that vested right could not be taken away by subsequent declaration of Talaq. Under such circumstances, the Court held that the provisions of the Act would not be applicable as on the date of order of maintenance, her status was not of divorced woman. Here, in this case, maintenance order has not been passed.
7. It is, thus, held that the applications filed by the respondent under Section 125, Cr.P.C. would be maintainable only for the period from 17.6.1986 to 14.9.1986 and Iddat period i.e., three lunar months. This application shall not be prosecutable after abovesaid period unless both parties exercise their options in writing under Section 5 of the Act. It is for the respondent either to proceed with the applications or withdraw it and file another application under the Act. The application stands disposed of under the observations made above.