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2006 DIGILAW 1172 (BOM)

Lahu Suka Panpatil v. Leelabai Dhuru Shirsath

2006-07-31

ANOOP V.MOHTA

body2006
JUDGMENT :- The petitioner - husband has challenged the order of grant of maintenance passed by the Addl. Sessions Judge, Dhule (Sessions Judge) by allowing the respondent's Criminal Misc. Application No.16/1990. In the result, the petitioner husband has been directed to pay an amount of Rs.200/- per month to the respondent - wife towards the maintenance from 1st January, 2000. 2. As the Judicial Magistrate, First Class, Sindhkheda (J.M.F.C.) by its order dated 31st July, 1996 rejected the respondent's application for maintenance under Section 125 of Cr.P.C. on the foundation that there was a mutual divorce as per their custom. 3. The respondent - wife has filed the present application against the petitioner husband, though they compromised their earlier application bearing Misc. Application No.2/78 by entering into a mutual divorce dated 2.4.1979 paid the marriage expenses at Rs. 750/- and the earlier application was disposed of accordingly. The said divorce deed was not signed by her. There was only her thumb impression on it. 4. The respondent - wife, a divorcee has examined herself in support of the application to establish that she was unable to maintain herself. She further deposed that the petitioner - husband getting Rs.2000 to 3000 per month at the time of filing of application and also income of Rs.35.000/- from all agricultural land. She denied again in her evidence that she had received an amount of Rs.750/- at the time of mutual divorce and, she has foregone her rights for future maintenance. She has not denied that there was divorce between herself and the petitioner husband before 15 to 16 years back. However, she stated that the contents of that divorce deed were not read over to her. 5. The petitioner husband has also examined himself and emphasised on the divorce deed and resisted the maintenance in view of the payment of Rs.750/-. He examined two attesting witnesses to support the same. However, he has admitted that he draws salary of Rs.2500 - 2600 per month and gets Rs.2000 in hand. Further defence was that he has to maintain himself, three kids, mother and windowed sister. He has further admitted during the course of cross-examination that his second wife is A.S.I. Police Officer and that he is working in police department since 20 years. 6. Further defence was that he has to maintain himself, three kids, mother and windowed sister. He has further admitted during the course of cross-examination that his second wife is A.S.I. Police Officer and that he is working in police department since 20 years. 6. After considering the rival submissions and the material placed on record, the J.M.F.C. had rejected the said application mainly on the ground of divorce deed and for the reason of non examination of the father of the respondent wife, who had signed the said divorce deed and that she is able to maintain herself and, therefore, disentitled to claim maintenance. 7. By the impugned judgment, the Sessions Judge reversed the said judgment of the J.M.F.C. and granted the maintenance by holding that the petitioner - husband has neglected and refused to maintain her and the petitioner husband has sufficient source of income to maintain her. The learned Judge further held that the petitioner - husband failed to prove that the respondent - wife is not entitled to claim alimony from him on the ground that he has given divorce to her and as she has foregone her right to get alimony, thereby, awarded Rs.200/- per month as maintenance to the respondent - wife. 8. Merely because the respondent - wife was earning some income, that itself cannot be the reason to discard her claim of maintenance totally, which she is otherwise entitled under the law. The Sessions Judge, Dhule, after considering the material placed on record, including her earning, awarded Rs.200/ - per month towards maintenance. Admittedly, the income of the petitioner - husband, who is working in Police Department since last 20 years and having second wife working in the same department, cannot be said to be earning less that 2600/- per month. In view of this, I see that the quantum of maintenance as awarded, in the facts and circumstances of the case, needs no interference. 9. A dispute is raised and wife at least, not accepted the contents as well as receipt of the amount as referred in the divorce deed. The settlement was in a proceeding initiated earlier by the respondent - wife for maintenance. So called divorce deed was executed in that proceeding and the matter was compromised, accordingly. Admittedly, it was not signed by the respondent - wife. The settlement was in a proceeding initiated earlier by the respondent - wife for maintenance. So called divorce deed was executed in that proceeding and the matter was compromised, accordingly. Admittedly, it was not signed by the respondent - wife. The said document was signed only by the father of the respondent - wife. She further stated that the· contents of that document were never read over to her and she never waived her right to future maintenance. She is not denying the thumb impression. However, there is nothing to deny the execution of the said deed as father of the respondent - wife, who signed that document, could not be examined. The petitioner husband has examined two attesting witnesses in support of the said deed. The question is whether that itself is a sufficient ground to disentitle the respondent - wife from claiming maintenance in the present proceedings. 10. The learned Advocate appearing for the petitioner - husband has relied on a decision Gajanan s/o. Pandurang Solanke Vs. Sheela Gajanan Solanke and others [ 2005(1) Mh.L.J. 348 : 2005 ALL MR (Cri) 314], wherein this Court, while considering the provisions of Section 127(3)(c) of Cr.P.C., held that wife after taking divorce agreeing to stay separately and giving up her claim of maintenance, is not entitled to claim maintenance. In the present case, though there is material on record to show the execution of the divorce deed, the evidence led by the respondent - wife shows that she is not accepting the same. She has, in fact, denied the contents of the said divorce deed. The amount of Rs.7501- towards marriage expenses, as said to be paid by the petitioner - husband, is also denied by her. When the application was filed for maintenance, it is difficult to accept that the wife, who accepted a small amount of Rs.7501- for divorce and further waived her future right to claim maintenance as contended. The facts are totally distinguishable. The whole application filed with the foundation that though there was divorce, she is still unable to maintain herself and, therefore, entitled for maintenance. The learned J.M.F.C. also rejected the application for maintenance on the ground that she is able to maintain herself and not on the ground of mutual divorce deed. 11. In Shrawan Sakharam Ubhale Vs. The whole application filed with the foundation that though there was divorce, she is still unable to maintain herself and, therefore, entitled for maintenance. The learned J.M.F.C. also rejected the application for maintenance on the ground that she is able to maintain herself and not on the ground of mutual divorce deed. 11. In Shrawan Sakharam Ubhale Vs. Durga Shrawan Ubhale and others [1990 Mh.L.J. 418], while considering the provisions of Section 125(4) and 127(3)(c) of Cr.P.C., this Court observed that once there is a divorce by a mutual consent and a divorced wife has agreed not to claim maintenance, she is, thereafter, disentitled to claim maintenance under Section 125, Cr.P.C .. In the present case, the whole foundation of the application is the denial to the contents of mutual divorce though, she admitted the divorce deed. Therefore, this judgment does not assist the petitioner -husband on facts also. 12. In Smt. Sushilabai w/o. Ravan Patil Vs. Shri. Ravan Elji Patil & another [ 1999(5) Bom.C.R. 74 : 1998 ALL MR (Cri) 1345], the wife had agreed to accept Rs.50001 - as consolidated payment for full and final settlement of the claim for maintenance for past and future. Therefore, such application under Section 125 of Cr.P.C. was held to be not maintainable. Having once raised the dispute about the contents of the said divorce deed and in the facts and circumstances of the case, when the respondent - wife even disputes receipt of Rs.750/- as alleged to have been paid towards marriage charges and/or future maintenance, such wife cannot be said to be disentitled to claim the maintenance. The learned J.M.F.C., in fact, considered this fact and rejected the application on the ground of her capacity to maintain herself. Therefore, this judgment is also not helpful to the petitioner - husband. 13. In Vitthal Hiraji Jadhav Vs. Harnabai Vitthal Jadhav and another [ 2003(4) Mh.L.J. 23 : 2003 ALL MR (Cri) 1094], while considering Section 125(4) of Cr.P.C., where husband and wife were residing separately by mutual consent, this Court observed that wife has no right to claim alimony from the husband. Having once raised the dispute about the contents of the mutual divorce deed in question, it is difficult to accept the submission as raised by the learned Advocate for the petitioner that there was mutual divorce between the parties. Having once raised the dispute about the contents of the mutual divorce deed in question, it is difficult to accept the submission as raised by the learned Advocate for the petitioner that there was mutual divorce between the parties. The contents of the divorce deed, in the facts and circumstances of the case, cannot be said to be a mutual consent to waive future right of maintenance as contemplated under Section 125(4), Cr.P.C. 14. In view of the judgment of the Apex Court in Bai Tahira Vs. Ali Hussain Fissalli Chothia and another [1979 Mh.L.J. 95] the Apex Court, after considering the provisions of Section 127(3)(b) read with section 125 of Cr.P.C., observed that the consent decree cannot itself operate to negate the claim under Section 125 though it was a consent decree in suit relating to flat in which the parties have obtained consent decree. The Apex Court further observed in paragraph 12 : "12. The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfillment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation if the Court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under Section 125 - not mathematically but fairly - then section 127(3)(b) subserves the goal and relieves the obliger, not pro tanto but wholly. The purpose of the payment under any customary or personal law must be to provide her with wherewithal to maintain herself. The whole scheme of section 127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential as provision for maintenance : to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. There must be a rational relation between the sum so paid and its potential as provision for maintenance : to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. The proposition, therefore, is that no husband can claim under section 127(3)(b) absolution from his obligation under Section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance." 15. The learned Advocate appearing for the respondent, in answer to the submissions, has strongly relied on the decision in Tejaswini d/o. Anandrao Tayade and another Vs. Chandrakant Kisanrao Shirsat and another [ 2005(3) Mh.L.J. 137 : 2005 ALL MR (Cri) 2173]. The judgments cited by the petitioner have been considered in this and observed in paragraph 12, thus: "12. In the present case, the customary divorce deed and the consent deed (Exh.23) is a contemporaneous document which is said to have been executed on 25.11.1995. Perusal of the contents of the consent deed (Exh.23) would reveal that covenant has been mentioned that the wife had given up her claim for past and future maintenance. However, the customary divorce deed was also brought into existence on the same day, but it is now settled position of law that the deed of divorce under which the wife is said to have given up her claim for maintenance, cannot be enforced in law because the said customary divorce deed is illegal and has no effect on the relinquishment of maintenance thereunder is of no consequence. The marital tie between the parties cannot be put to an end by execution of the customary divorce deed and the parties can avail the remedies under the civil law if at all they want to compromise the matter by mutual consent. It is obvious that unless there is a decree of divorce passed by the competent Court under section 13-A or the Hindu Marriage Act, 1955, it is not possible to accept that the marriage can be dissolved by entering into the consent deed and/or divorce deed. It is obvious that unless there is a decree of divorce passed by the competent Court under section 13-A or the Hindu Marriage Act, 1955, it is not possible to accept that the marriage can be dissolved by entering into the consent deed and/or divorce deed. Therefore, this is a case wherein it is not possible to accept the contentions that the parties are living separate by mutual consent and, therefore the wife is not entitled to claim maintenance by virtue of sub-section (4) of section 125 of the Code of Criminal procedure." The further relevant paragraphs 15 and 16 in the case of Tejaswini (supra) further concludes the present case in favour of the respondent wife. Paragraphs 15 and 16 reads: "15. I am in respectful agreement with the view taken by the Single Judge of this Court in the aforementioned case. In that case this Court followed the decision of the Apex Court in the case of Smt. Vanamala Vs. H. M. Ranganatha Bhatta, 1995(2) Mh.L.J. (SC) 740 - (1995)5 SCC 299 , wherein it has been held that. "The expression "wife" in sub-section (4) of section 125 does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to have with her husband. After divorce where is the occasion for the woman to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, subsection (4) of section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. Therefore, a wife who obtains divorce by mutual consent cannot be denied maintenance by virtue of section 125(4)." This decision would be squarely applicable to the facts and circumstances of the present case. 16.In such circumstances, in the present case it is not possible that the parties were living separate by mutual consent and the wife has lost her right to claim maintenance under sub-section (4) of section 125 of the Code of Criminal Procedure. 16.In such circumstances, in the present case it is not possible that the parties were living separate by mutual consent and the wife has lost her right to claim maintenance under sub-section (4) of section 125 of the Code of Criminal Procedure. In such circumstances the findings of the learned Additional Sessions Judge that there was a customary divorce and the consent deed was executed in which the wife has relinquished her claim for maintenance for past and future and the wife who has obtained divorce and relinquished her maintenance, is not entitled to claim maintenance under Section 125, Criminal Procedure Code, cannot be sustained in law and, therefore, the impugned judgment and order passed by the learned Additional Sessions Judge rejecting the claim of maintenance to the wife is liable to be quashed and the order that has been, passed by the Magistrate deserves to be restored." 16. Accepting the above, I see there is no reason to interfere with the order of grant of maintenance passed by the revisional court basically, in the facts and circumstances ofthe case, of awarding Rs.200/- per month towards maintenance. There is no perversity as such which needs interference. The above observations of the Courts are sufficient to maintain the order impugned. 17 .. Taking all this into account, the revision application is dismissed. Rule discharged with no order as to costs. Application dismissed.