The Division Bench of this Court in
Rajashri Rajendra Shasane Vs. Rajendra Babulal
Shasane 1997 (1) Mah.L.J. 254, has held that, “in
order to pass a decree of divorce by mutual consent,
both the parties have to file a petition for divorce
by mutual consent on the ground that they have been
living separately for a period of one year or more
and that they are unable to live together and that
they have mutually agreed that their marriage should
be dissolved.”
8) The case projected by Vishnu is that, the
marital discord ensued by filing Regular Civil Suit
No.10/1995 on 10th January, 1995 and it was
decree/disposed of on 11th January, 1995 by
compromise, which required the wife/Respondent to
withdraw the maintenance proceedings initiated by
her.
9) After the marital relations dated 23.5.1989,
the legal status of the Respondent whether can be
said to come to an end by virtue of the decree in RCS
No. 10/1995? It was a suit, in which, Vishnu claimed
relief of declaration that Respondent Smt. Adhika is
his divorced wife and in the said suit, compromise
pursis was submitted. Smt. Adhika allegedly accepted
suit of Vishnu to be true and correct and accepted
that Vishnu has provided her life time maintenance on
st December, 1994. Hence, she will not claim
maintenance in future. The learned Civil Judge,
Junior Division, who recorded the decree obviously
did not issue suit summons to Sow. Adhika. It is so
recorded in the proceedings. He has allegedly
recorded, the Pursis at Exhibit9 no sooner the suit
was presented on 10th January, 1995 and decreed the
suit on 11th January, 1995. The said consent decree
apparently does not bear signature or thumb
impression of Sow. Adhika nor had signature of her
advocate. Under what circumstances it was acted upon
is a misery in itself. However, giving gobye even
to such illegalities, the fact remains, such
declaration of divorce or mutual divorce being
against the spirit of Hindu Marriage Act and
particularly Section 13 thereof, is not acceptable in
the eyes of law.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.122 OF 2003
Vishnu s/o Ganpati Subugade
VERSUS
Sow.Adhika w/o Vishnu Subugade
CORAM : K.U.CHANDIWAL, J.
DATE OF PRONOUNCING JUDGMENT: 3
rd APRIL, 2013.
1) Heard extensively. Rule was issued on 3rd
December, 2003.
2) Respondent – Sow. Adhika filed maintenance
proceedings under Section 125 Code of Criminal
Procedure, vide application No.171/1993, and
maintenance of Rs.200/ p.m. was granted to her.
Said order was questioned in Criminal Revision
Application No. 86/1996 before the learned Additional
Sessions Judge at Osmanabad. The revision was
allowed. The matter was remanded for fresh trial to
the learned Judicial Magistrate First Class. It was
dismissed on 8th March, 2001. The respondent feeling
aggrieved by the said judgment, challenged it in
revision before Court of Sessions at Osmanabad being
Criminal Revision No.173/2001, wherein maintenance @
Rs.250/ p.m. was granted to the respondent. Same is
questioned by the petitioner – Vishnu.
3) The ground of challenge is, a) without any
authority, learned Additional Sessions Judge extended
monetary benefit of maintenance oblivious to the
fact that Regular Civil Suit No.10/1995 was decreed
on dated 11th January, 1995 by learned Civil Judge,
Junior Division, Bhoom. Respondent has waived her
rights of maintenance from Vishnu. Compromise Pursis
(Exhibit9) in the said RCS No. 10/1995, according to
learned Counsel, has reached finality and hence,
there could not have been adverse opinion, that too
in revision, by the learned Additional Sessions
Judge.
4) According to Mr.Mahajan, once consolidated
or lump sum maintenance was released and compromise
in RCS No. 10/1995 was recorded, it was expected of
the Respondent to withdraw the maintenance
proceedings pending at Paranda. The decree is binding
on her.
5) Shri Mahajan has placed reliance to
following judgments/citations,
Sr.No. Citations
1) 1989 Cri.L.J. 211
Shrawan Sakharam Ubale Vs. Sau Durga Shrawan
Ubale.
2) 2003 (4) Mh.L.J.23
Vithal Hiraji Jadhav Vs. Harnabai Vithal Jadha
3) 2005 (1) Mh.L.J. 348
Gajanan Pandurang Solunke Vs. Sheela Gajanan
Solunke
4) 1990 Cri.L.J. 2415
Amarendra Nath Bagui Vs. Gauri Rani
6) There cannot be a contest on the legal
position. However, in spite of such judgment by this
Court, Judgment of Hon’ble Supreme Court in the
matter of Smruti Pahariya Vs. Sanjay Pahariya – AIR
2009 SC 2840, will prevail, as it relates to effect
of divorce by mutual consent. It has been observed
by the threeJudges Bench, it is only the mutual
consent of the parties, which gives the Court
jurisdiction to pass a decree for divorce under
Section 13(B) of Hindu Marriage Act. It is a
jurisdictional fact. The Court has to be satisfied
about existence of mutual consent between the parties
on some tangible materials, which demonstratably
disclose such consent. Where one of the parties to
the petition for divorce by mutual consent remains
absent, on two or three dates fixed for hearing of
petition and from this mere absence the court
presumes it due consent and pass a decree for divorce
by mutual consent, the decree passed is liable to be
set aside.
7) The Division Bench of this Court in
Rajashri Rajendra Shasane Vs. Rajendra Babulal
Shasane 1997 (1) Mah.L.J. 254, has held that, “in
order to pass a decree of divorce by mutual consent,
both the parties have to file a petition for divorce
by mutual consent on the ground that they have been
living separately for a period of one year or more
and that they are unable to live together and that
they have mutually agreed that their marriage should
be dissolved.”
8) The case projected by Vishnu is that, the
marital discord ensued by filing Regular Civil Suit
No.10/1995 on 10th January, 1995 and it was
decree/disposed of on 11th January, 1995 by
compromise, which required the wife/Respondent to
withdraw the maintenance proceedings initiated by
her.
9) After the marital relations dated 23.5.1989,
the legal status of the Respondent whether can be
said to come to an end by virtue of the decree in RCS
No. 10/1995? It was a suit, in which, Vishnu claimed
relief of declaration that Respondent Smt. Adhika is
his divorced wife and in the said suit, compromise
pursis was submitted. Smt. Adhika allegedly accepted
suit of Vishnu to be true and correct and accepted
that Vishnu has provided her life time maintenance on
1
st December, 1994. Hence, she will not claim
maintenance in future. The learned Civil Judge,
Junior Division, who recorded the decree obviously
did not issue suit summons to Sow. Adhika. It is so
recorded in the proceedings. He has allegedly
recorded, the Pursis at Exhibit9 no sooner the suit
was presented on 10th January, 1995 and decreed the
suit on 11th January, 1995. The said consent decree
apparently does not bear signature or thumb
impression of Sow. Adhika nor had signature of her
advocate. Under what circumstances it was acted upon
is a misery in itself. However, giving gobye even
to such illegalities, the fact remains, such
declaration of divorce or mutual divorce being
against the spirit of Hindu Marriage Act and
particularly Section 13 thereof, is not acceptable in
the eyes of law.
10) There is a cloud of doubt of paying Rs.
20,000/ to the wife, as it is not referred in
compromise or any where. Husband Vishnu has said that
the amount of Rs.20,000/ was not released to Sow.
Adhika as a life time maintenance at court premises,
Bhoom at the time of said compromise arrived in RCS
No.10/1995 on 1.12.1994. However, witness Ashruba
claimed that such maintenance was paid to Sow. Adhika
in a meeting. The marital status between the
parties apparently even by virtue of said RCS No.
10/1995, cannot be said to have come to an end.
11) Even if one proceeds ahead, said Vishnu
cannot take shelter to provisions of Section 125(4)
of Code of Criminal Procedure to assert that a
divorced woman is not entitled for maintenance. This
is more so, the Hon’ble Supreme court in the matter
of Vanmala Vs. H.M.Ranganatha Bhatta – 1995 (2)
Mah.L.J. 740, has held, “section 125(4) Code of
Criminal Procedure does not take away right of a wife
to claim maintenance. The Hon’ble Supreme Court
further observed, the expression “living separately
by mutual consent” does not cover cases although
living separately due to divorce. It is also a
matter of record that Sow. Adhika has not remarried
after the alleged divorce. Consequently, she comes
within the ambit of Section 125 Code of Criminal
Procedure to stake maintenance. Thus, RCS No.10/1995
or socalled divorce or socalled onetime
settlement, will not defuse and deflate rights of
Adhika for maintenance allowance against Vishnu, her
husband.
11) Evidence illustrate, Vishnu was a driver and
had sufficient means to maintain his wife. Award of
maintenance @ Rs.250/ p.m. was in proportionate to
his earnings and in tune of standard of life between
the parties.
12) The Revision lacks merit, dismissed. Rule
discharged.
(K.U.CHANDIWAL)
Print Page
Rajashri Rajendra Shasane Vs. Rajendra Babulal
Shasane 1997 (1) Mah.L.J. 254, has held that, “in
order to pass a decree of divorce by mutual consent,
both the parties have to file a petition for divorce
by mutual consent on the ground that they have been
living separately for a period of one year or more
and that they are unable to live together and that
they have mutually agreed that their marriage should
be dissolved.”
8) The case projected by Vishnu is that, the
marital discord ensued by filing Regular Civil Suit
No.10/1995 on 10th January, 1995 and it was
decree/disposed of on 11th January, 1995 by
compromise, which required the wife/Respondent to
withdraw the maintenance proceedings initiated by
her.
9) After the marital relations dated 23.5.1989,
the legal status of the Respondent whether can be
said to come to an end by virtue of the decree in RCS
No. 10/1995? It was a suit, in which, Vishnu claimed
relief of declaration that Respondent Smt. Adhika is
his divorced wife and in the said suit, compromise
pursis was submitted. Smt. Adhika allegedly accepted
suit of Vishnu to be true and correct and accepted
that Vishnu has provided her life time maintenance on
st December, 1994. Hence, she will not claim
maintenance in future. The learned Civil Judge,
Junior Division, who recorded the decree obviously
did not issue suit summons to Sow. Adhika. It is so
recorded in the proceedings. He has allegedly
recorded, the Pursis at Exhibit9 no sooner the suit
was presented on 10th January, 1995 and decreed the
suit on 11th January, 1995. The said consent decree
apparently does not bear signature or thumb
impression of Sow. Adhika nor had signature of her
advocate. Under what circumstances it was acted upon
is a misery in itself. However, giving gobye even
to such illegalities, the fact remains, such
declaration of divorce or mutual divorce being
against the spirit of Hindu Marriage Act and
particularly Section 13 thereof, is not acceptable in
the eyes of law.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.122 OF 2003
Vishnu s/o Ganpati Subugade
VERSUS
Sow.Adhika w/o Vishnu Subugade
CORAM : K.U.CHANDIWAL, J.
DATE OF PRONOUNCING JUDGMENT: 3
rd APRIL, 2013.
1) Heard extensively. Rule was issued on 3rd
December, 2003.
2) Respondent – Sow. Adhika filed maintenance
proceedings under Section 125 Code of Criminal
Procedure, vide application No.171/1993, and
maintenance of Rs.200/ p.m. was granted to her.
Said order was questioned in Criminal Revision
Application No. 86/1996 before the learned Additional
Sessions Judge at Osmanabad. The revision was
allowed. The matter was remanded for fresh trial to
the learned Judicial Magistrate First Class. It was
dismissed on 8th March, 2001. The respondent feeling
aggrieved by the said judgment, challenged it in
revision before Court of Sessions at Osmanabad being
Criminal Revision No.173/2001, wherein maintenance @
Rs.250/ p.m. was granted to the respondent. Same is
questioned by the petitioner – Vishnu.
3) The ground of challenge is, a) without any
authority, learned Additional Sessions Judge extended
monetary benefit of maintenance oblivious to the
fact that Regular Civil Suit No.10/1995 was decreed
on dated 11th January, 1995 by learned Civil Judge,
Junior Division, Bhoom. Respondent has waived her
rights of maintenance from Vishnu. Compromise Pursis
(Exhibit9) in the said RCS No. 10/1995, according to
learned Counsel, has reached finality and hence,
there could not have been adverse opinion, that too
in revision, by the learned Additional Sessions
Judge.
4) According to Mr.Mahajan, once consolidated
or lump sum maintenance was released and compromise
in RCS No. 10/1995 was recorded, it was expected of
the Respondent to withdraw the maintenance
proceedings pending at Paranda. The decree is binding
on her.
5) Shri Mahajan has placed reliance to
following judgments/citations,
Sr.No. Citations
1) 1989 Cri.L.J. 211
Shrawan Sakharam Ubale Vs. Sau Durga Shrawan
Ubale.
2) 2003 (4) Mh.L.J.23
Vithal Hiraji Jadhav Vs. Harnabai Vithal Jadha
3) 2005 (1) Mh.L.J. 348
Gajanan Pandurang Solunke Vs. Sheela Gajanan
Solunke
4) 1990 Cri.L.J. 2415
Amarendra Nath Bagui Vs. Gauri Rani
6) There cannot be a contest on the legal
position. However, in spite of such judgment by this
Court, Judgment of Hon’ble Supreme Court in the
matter of Smruti Pahariya Vs. Sanjay Pahariya – AIR
2009 SC 2840, will prevail, as it relates to effect
of divorce by mutual consent. It has been observed
by the threeJudges Bench, it is only the mutual
consent of the parties, which gives the Court
jurisdiction to pass a decree for divorce under
Section 13(B) of Hindu Marriage Act. It is a
jurisdictional fact. The Court has to be satisfied
about existence of mutual consent between the parties
on some tangible materials, which demonstratably
disclose such consent. Where one of the parties to
the petition for divorce by mutual consent remains
absent, on two or three dates fixed for hearing of
petition and from this mere absence the court
presumes it due consent and pass a decree for divorce
by mutual consent, the decree passed is liable to be
set aside.
7) The Division Bench of this Court in
Rajashri Rajendra Shasane Vs. Rajendra Babulal
Shasane 1997 (1) Mah.L.J. 254, has held that, “in
order to pass a decree of divorce by mutual consent,
both the parties have to file a petition for divorce
by mutual consent on the ground that they have been
living separately for a period of one year or more
and that they are unable to live together and that
they have mutually agreed that their marriage should
be dissolved.”
8) The case projected by Vishnu is that, the
marital discord ensued by filing Regular Civil Suit
No.10/1995 on 10th January, 1995 and it was
decree/disposed of on 11th January, 1995 by
compromise, which required the wife/Respondent to
withdraw the maintenance proceedings initiated by
her.
9) After the marital relations dated 23.5.1989,
the legal status of the Respondent whether can be
said to come to an end by virtue of the decree in RCS
No. 10/1995? It was a suit, in which, Vishnu claimed
relief of declaration that Respondent Smt. Adhika is
his divorced wife and in the said suit, compromise
pursis was submitted. Smt. Adhika allegedly accepted
suit of Vishnu to be true and correct and accepted
that Vishnu has provided her life time maintenance on
1
st December, 1994. Hence, she will not claim
maintenance in future. The learned Civil Judge,
Junior Division, who recorded the decree obviously
did not issue suit summons to Sow. Adhika. It is so
recorded in the proceedings. He has allegedly
recorded, the Pursis at Exhibit9 no sooner the suit
was presented on 10th January, 1995 and decreed the
suit on 11th January, 1995. The said consent decree
apparently does not bear signature or thumb
impression of Sow. Adhika nor had signature of her
advocate. Under what circumstances it was acted upon
is a misery in itself. However, giving gobye even
to such illegalities, the fact remains, such
declaration of divorce or mutual divorce being
against the spirit of Hindu Marriage Act and
particularly Section 13 thereof, is not acceptable in
the eyes of law.
10) There is a cloud of doubt of paying Rs.
20,000/ to the wife, as it is not referred in
compromise or any where. Husband Vishnu has said that
the amount of Rs.20,000/ was not released to Sow.
Adhika as a life time maintenance at court premises,
Bhoom at the time of said compromise arrived in RCS
No.10/1995 on 1.12.1994. However, witness Ashruba
claimed that such maintenance was paid to Sow. Adhika
in a meeting. The marital status between the
parties apparently even by virtue of said RCS No.
10/1995, cannot be said to have come to an end.
11) Even if one proceeds ahead, said Vishnu
cannot take shelter to provisions of Section 125(4)
of Code of Criminal Procedure to assert that a
divorced woman is not entitled for maintenance. This
is more so, the Hon’ble Supreme court in the matter
of Vanmala Vs. H.M.Ranganatha Bhatta – 1995 (2)
Mah.L.J. 740, has held, “section 125(4) Code of
Criminal Procedure does not take away right of a wife
to claim maintenance. The Hon’ble Supreme Court
further observed, the expression “living separately
by mutual consent” does not cover cases although
living separately due to divorce. It is also a
matter of record that Sow. Adhika has not remarried
after the alleged divorce. Consequently, she comes
within the ambit of Section 125 Code of Criminal
Procedure to stake maintenance. Thus, RCS No.10/1995
or socalled divorce or socalled onetime
settlement, will not defuse and deflate rights of
Adhika for maintenance allowance against Vishnu, her
husband.
11) Evidence illustrate, Vishnu was a driver and
had sufficient means to maintain his wife. Award of
maintenance @ Rs.250/ p.m. was in proportionate to
his earnings and in tune of standard of life between
the parties.
12) The Revision lacks merit, dismissed. Rule
discharged.
(K.U.CHANDIWAL)
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