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2018 DIGILAW 411 (BOM)

Abhilasha D/o Uprendra Kamble v. Nilesh

2018-02-09

S.B.SHUKRE

body2018
JUDGMENT S.B. Shukre, J -Rule. Rule made returnable forthwith. Heard finally by consent. 2. The only issue arises for consideration is, as to whether or not a divorc e woman, whose marriage has been dissolved on the ground of her cruelty to the husband, is entitled to receive maintenance under Section 125 of the Code of Criminal Procedure (for short ''Cr.P.C.''). The learned Magistrate, who granted maintenance answered the question as in the affirmative, while the learned Additional Sessions Judge, who allowed the revision application filed by the respondent answered the question as in the negative and in favour of the respondent-husband. This question has assumed importance because the marriage of the petitioner and respondent no.1 was dissolved by granting a decree of divorce during pendency of the revision application and this event, it is seen from the order of the learned Additional Session Judge, which is impugned in this petition, weighed on the mind of the learned Additional Sessions Judge. By relying upon the case of Deb Narayan Halder vs. Smt. Anushree Halder , (2003) AIR SC 3174, the learned Additional Sessions Judge found that as the petitioner was cruel to respondent no.1 and the decree of divorce has also been granted on this ground, the petitioner would not be entitled to receive any maintenance amount from her husband i.e. respondent no.1. The learned Additional Sessions Judge did not record any categorical finding that the ingredients of Section 125 of the Cr.P.C. have not been shown to be fulfilled by the petitioner so as to dis-entitle her to any order of maintenance under this Section. 3. The learned Counsel for respondent No.1 submits that the conclusion so arrived at by the learned Additional Sessions Judge is correct and consistent with the facts established on record. He also submits that on the other hand, the learned Magistrate recorded perverse findings. The learned Counsel for the petitioners disagrees. He submits that basically there were no perverse findings recorded by the learned Magistrate and that it were the learned Additional Sessions Judge, who made perverse conclusions by ignoring the well settled principles of law. 4. He also submits that on the other hand, the learned Magistrate recorded perverse findings. The learned Counsel for the petitioners disagrees. He submits that basically there were no perverse findings recorded by the learned Magistrate and that it were the learned Additional Sessions Judge, who made perverse conclusions by ignoring the well settled principles of law. 4. On going through the order passed by the learned Magistrate granting maintenance of Rs.10, 000/- per month in all (Rs.6, 000/- p.m. to petitioner no.1 and Rs.4, 000/- p.m. to petitioner no.2) and the order passed by the learned Additional Sessions Judge, I find that there is great substance in the argument of the learned Counsel for the petitioners and no merit in the submission of the learned Counsel for respondent no.1. 5. Explanation to sub-section 1 of Section 125 of Cr.P.C. clarifies that "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The explanation does not distinguish between a divorc e woman found guilty of cruelty and the other divorc e woman. Therefore, every woman, who is divorc e, would fall within the scope and ambit of the explanation to sub-section 1 of Section 125 of Cr.P.C. In the case of Deb Naayan Halder also, I could not come across any observation of the Hon''ble Apex Court to the effect that a divorcee woman, who has been granted divorce on the ground of her cruelty to the husband is dis-entitled to receive maintenance under Section 125 of Cr.P.C. The learned Counsel for respondent no.1 also graciously concedes this fact. I do not understand as to how the learned Additional Sessions Judge could have culled out from this case something, which was not it''s ratio. Be that as it may, the fact remains that the learned Additional Sessions Judge has committed manifest illegality by holding that a divorc e woman, who has been granted divorce on the ground of her cruelty to her husband is not entitled to receive maintenance. In fact, the law is that and it is a settled one, even such a woman is entitled to receive maintenance, which has been rightly found by the learned Magistrate when he granted overall maintenance of Rs.10, 000/- to both the petitioners. 6. In fact, the law is that and it is a settled one, even such a woman is entitled to receive maintenance, which has been rightly found by the learned Magistrate when he granted overall maintenance of Rs.10, 000/- to both the petitioners. 6. On the quantum of maintenance, I must say, the learned Magistrate has rightly taken into consideration the interim maintenance granted by the Family Court and by a specific finding recorded to that effect, adjusted the amount against the final amount of maintenance that he granted while allowing application of the petitioners under Section 125 of Cr.P.C. 7. In the result, I find merit in the petition and it deserves to be allowed. 8. The petition is allowed. The impugned order passed by the Additional Sessions Judge is quashed and set aside and the order passed by the learned Magistrate is confirmed. Rule is made absolute in the above terms.