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2004 DIGILAW 166 (MP)

Nirpat Singh v. Kiranbai

2004-02-16

S.K.PANDE

body2004
JUDGMENT This petition U/S 482 CrPC is directed against the order dated 13.1.1998, passed by ASJ, Dindori in Criminal Revision No. 43/97, affirming the order dated 30.9.1996, passed by ACJM, Dindori in MJC No. 41/94, granting maintenance u/s 125 CrPC to the respondent. Respondent Kiranbai being legally married wife on 1.9.1994 filed application u/s 125 CrPC before ACJM, Dindori. Petitioner-husband resisted the application. Vide amendment dated 28.9.1996, in reply to the application U/S 125 CrPC it has been asserted that as per caste custom, there had been a divorce between the parties on 14.6.1996 and receiving Rs. 18,0001- in lumpsum, she voluntarily surrendered her rights to maintenance. Vide order dated 30.9.1996, the ACJM allowed the application and directed the petitioner to pay maintenance at the rate of Rs. 400/- p.m. to the respondent-wife. Being aggrieved, he preferred Criminal Revision No. 43/97 before ASJ, Dindori. The Court below also affirming the order passed by ACJM, Dindari, dismissed the revision. The case of the petitioner-husband is that during the pendency of application u/s 125 CrPC, there had been a mutual divorce as per caste custom. On 14.6.1996, accepting the divorce, the respondent received Rs.18,000/- lumpsum from the petitioner and voluntarily surrendered her rights to seek maintenance from the petitioner. She agreed to withdraw the proceedings on application u/s 125 CrPC pending before the ACJM, Dindori. Evidence to this effect has been adduced. DW 1 Nirpat Singh has stated that the matrimonial life of petitioner and respondent was not satisfactory and the respondent was residing with her parents. A suit for seeking dissolution of marriage was also filed by the petitioner. On the background aforesaid, there had been a caste panchayat on 14.6.1996, wherein the respondent-wife agreed for a mutual divorce and received Rs.18,000/- from the petitioner. She voluntarily surrendered her rights of maintenance. Document Exhibit D-1 was accordingly executed and signed by PW 1 Kiranbai and DW 1 Nirpat Singh. DW 2 Bansu Singh, DW 3 Sukhram Singh are attesting witnesses of this document exhibit D-1 incorporating mutual divorce as per caste custom and receiving Rs.18,000/- voluntarily surrendering the tights of maintenance. There is no evidence to contradict the aforesaid statements of DW 1 Nirpat Singh, DW 2 Bansu Singh and DW 3 Sukhram Singh. DW 2 Bansu Singh, DW 3 Sukhram Singh are attesting witnesses of this document exhibit D-1 incorporating mutual divorce as per caste custom and receiving Rs.18,000/- voluntarily surrendering the tights of maintenance. There is no evidence to contradict the aforesaid statements of DW 1 Nirpat Singh, DW 2 Bansu Singh and DW 3 Sukhram Singh. Accordingly, it has been proved that by executing exhibit D-1 on 14.6.1996, the respondent-wife obtained a mutual divorce as per caste custom and having received Rs.18,000/-, voluntarily surrendered her rights of maintenance. Further, she had agreed to withdraw the pending proceeding U/S 125 CrPC. It is contended that even after divorce, the respondent-wife may seek maintenance U/S 125 CrPC. Section 127(3) CrPC. lays down: "127. Alteration of allowance -- (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that: (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be after her divorce, cancel the order from the date thereof." The provision u/s 125 CrPC, therefore, lays down that even where there had been an order of maintenance to wife on proof of a change in the circumstances to the effect that wife has obtained a divorce and that she had voluntarily surrendered her rights to maintenance after her divorce, the Magistrate may cancel the order from the date thereof. Vide exhibit D-1, the respondent-wife accepting mutual divorce and receiving Rs. 18,000/-, voluntarily surrendered her rights to maintenance and agreed to withdraw the proceedings arising out of her application u/s 125 CrPC. Therefore, the Courts below ignoring the agreement exhibit D-1, erred in allowing the application u/s 125 CrPC granting maintenance at the rate of Rs. 400/- to the respondent-wife. Consequently, petition u/s 482 CrPC succeeds and is allowed. The order impugned directing petitioner to pay maintenance at the rate of Rs.400/- p.m. to the respondent wife is set aside. Instead, application u/s 125 CrPC is dismissed.