IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.7599 of 2009 Between: Syed Mohammed .. Petitioner AND Mumtaz Begum @ Ayeesha and 4 others .. Respondents Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court may be pleased to direct the IV Judicial Magistrate of First Class, Chittoor, not to proceed with Crl.M.P.No.769 of 2009 in M.C.No.17 of 2008. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri C. Masthan Naidu, learned counsel for the petitioner and of Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the fifty respondent, the Court made the following: ORDER: Heard Sri C. Masthan Naidu, learned counsel for the petitioner and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the fifth respondent. No notice is being ordered to respondents 1 to 4 as the matter is being disposed of at the stage of admission. The petitioner is aggrieved by the trial Court entertaining and proceeding with Crl.M.P.No.769 of 2009 in M.C.No.17 of 2008, which is an application filed under Section 128 of the Code of Criminal Procedure, for enforcement of the order of maintenance passed on 13-03-2009 in the Maintenance Case. The petitioner’s grievance is that the order granting such maintenance was passed ex parte without taking into account the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and the fact that the first respondent was divorced under the Muslim Law by the petitioner much earlier. The petitioner also contends that Section 125 of the Code of Criminal Procedure would have absolutely no application to the claims of the respondents. It may be true that the option to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure given under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is restricted to the specified circumstances enumerated in the said provision, but the same is a question of fact, which will not be probed into by the High Court in a restricted and summary enquiry under Section 482 of the Code of Criminal Procedure. That apart, either passing an order granting maintenance ex parte or the applicability of Section 125 of the Code of Criminal Procedure to the claims of the parties concerning the maintenance are not questions, which are directly the subject matter of the present petition. So long as the order of maintenance granting maintenance in M.C.No.17 of 2008 on 13-03-2009 is in force, the enforcement of the same under Section 128 of the Code of Criminal Procedure cannot be considered to be an abuse of process of law and cannot be quashed in exercise of inherent jurisdiction. However, that does not preclude the petitioner from agitating his rights and pursuing his remedies against the legality, sustainability and maintainability of the claim for maintenance in M.C.No.17 of 2008 and consequentially, the legality and sustainability of the order of maintenance granted on 13-03-2009, through appropriate proceedings before the trial Court or any other forum as are provided by law. Subject to the above observations, the Criminal Petition is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 18-09-2009 Ksn