the proof of customary divorce, in that case also, in view of the aforesaid
provisions of the Code of Criminal Procedure, the husband cannot avoid
the liability. If there there was the divorce under the document, the
husband cannot take defence that the wife has been living separate
without sufficient cause. If the wife was already living separate, there
was sufficient cause for her and so, this document cannot help the
husband to avoid the liability. It is not possible to draw inference that the
parties are already living separate by mutual consent or the wife was
living separate without sufficient reason. It is already observed that in
view of the facts of the case, it cannot be inferred that there was
relinquishment of right of maintenance. If there was no divorce obtained
under the document, then in view of the aforesaid provisions, it needs to
be held that there was no question of relinquishment of the right of
maintenance.
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO. 4 OF 2011
Sau. Sindhubai Ramesh Landge,
Name after divorce
Sindhu D/o Ramdas More,
V
Ramesh Dagaa Landge,
CORAM : T.V. NALAWADE, J.
Citation; 2014(2)crimes 351 Bom,
1
th
13 June, 2013.
DATE :
The petition is filed to challenge the judgment and order of
Criminal Revision Application No.29 of 2008, which was pending in the
Court of Additional Sessions Judge, Shahada. The Sessions Court has
set aside the judgment and order of J.M.F.C. by which the maintenance
was refused to Respondent No.1 under Section 125 of the Code of
Criminal Procedure. The Sessions Court has awarded maintenance at
the rate of Rs.1,000/ per month in favour of Respondent No.1.
Both the sides are heard.
The parties are Hindu by religion. Their marriage took place
in the year 1992. They have two issues out of this marriage. In the year
2005, maintenance proceedings was filed under Section 125 of the
Code of Criminal Procedure by present Respondents, but it was
dismissed for nonprosecution, due to absence of the wife. The present
proceedings came to be filed in the year 2007. The J.M.F.C. granted
maintenance to two issues, but refused the maintenance to the wife by
holding that, she has been living separate without sufficient reason and
she has also agreed not to claim the maintenance. The husband took
the defence that one document of divorce named as “Pharkat Patra”
was executed by the parties and due to the said document, the wife is
not entitled to get the maintenance. It is the case of the wife that there
was an agreement to make provision of residence and maintenance for
the wife and the issues, but that part of agreement was never complied
with. The husband has contended that he had acted as per the
agreement and he had given house and cash amount to the wife and
issues. The Sessions Court has held that though there was such
agreement, that agreement is not enforceable in view of the provisions
of the Contract Act. The Sessions Court has relied on the case of
[ 1987 CRI. L. J. 765(1), Kerala High Court ( Sadashiv Pillai Vs.
Vijayalakshmi ).
The execution of the document titled as “Pharkat Patra”,
divorce deed, is not disputed. There is a mention in the document that
in the caste of the parties, there is a custom of such divorce. The
submissions made in this proceedings show that the husband is not
interested to prosecute his defence that under the document, divorce
was taken by the parties. Submissions were made for the husband that
there was parallel oral agreement under which some arrangements
were made for making provisions of maintenance for the wife and
issues. Evidence is according given by the parties.
Two different defences are taken by the husband viz, i)
there was relinquishment of maintenance by the wife and ii) that the wife
has been living separate without sufficient reason or by mutual consent
and so, she is not entitled to get maintenance. Learned counsel for both
the parties have relied on some reported cases. The provision with
regard to defence taken by the husband can be found in proviso No.2 of
Section 125 (3), Sections 125(4) and 125(5) of the Code of Criminal
Procedure.
“Proviso 2 of Section 125(3) :
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.– If a husband has contracted
marriage with another woman or keeps a mistress,
it shall be considered to be just ground for his
wife’s refusal to live with them.
Section 125 (4)
No wife shall be entitled
to receive an allowance for the maintenance or the
interim maintenance and expenses of proceeding,
as the case may be, from her husband under this
section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual
consent.
Section 125 (5)
On proof that any wife in
whose favour an order has been made under this
section is living in adultery, or that without
sufficient reason she refuses to live with her
husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the
order.”
In Section 125(1) (Explanation) (b), it is made clear that the term
“wife, used in Section 125 of the Code of Criminal Procedure, includes a
woman who has been divorced by, or has obtained a divorce from her
husband and has not remarried.
Provision of Section 127(2)(c) providing for cancellation of
maintenance order is also relevant in this regard and it is as follows:
“(c) the woman has obtained a divorce from her
husband and that she had voluntarily
surrendered her rights to maintenance or interim
maintenance after her divorce, cancel the order
from the date thereof.
In the case reported as [ 1991 (2) SCC 375 ], ( Vimala (K.)
Vs. Veeraswamy (K.) ) and [ AIR 2005 Supreme Court 1809 ],
( Savitaben Somabhai Bhatiya Vs. State of Gujarat and others ), the
Apex Court has discussed the object behind the aforesaid provisions of
the Code of Criminal Procedure and has made some observations on
the approach, which needs to be adopted by the Courts at the time of
appreciation of evidence in such cases. The object is to achieve social
purpose to prevent vagrancy and destitution. The object is also to
provide quick remedy by using summary procedure. This right is given
on the basis of the natural and fundamental duties of a man to maintain
his wife, children and parents, who are unable to maintain themselves.
While appreciating the evidence given by the parties, the Court is
expected to keep the aforesaid objects in mind and also the condition of
the woman in Indian society. In view of the nature of defences available
to the husband in the aforesaid provisions, each case needs to be
decided on the basis of the facts and circumstances of that case.
In view of the facts of the case, the learned counsel for the
Petitioner relied on the observations made in the following reported
cases.
[ 1990 MHLJ 418 ], Bombay High Court,
i.
( Shrawan Sakharam Ubhale Vs. Durga Sakharam
Ubhale ) ;
ii.
[ 2005(1) Mh.L.J. 348 ], Bombay High Court,
( Gajanan s/o Pandurang Solanke Vs. Sheela
Gajanan Solanke and others ) ;
iii.
[ 2003 (4) Mh.L.J 23 ], Bombay High Court,
( Vitthal Hiraji Jadhav Vs. Harnabai Vitthal Jadhav
iv.
and another ) ;
[ 2003 (2) Mh.L.J. 608 ], Bombay High Court,
( Popat Kashinath Bodke Vs. Kamalabai Popat Bodke
and others ).
The facts of Popat’s case cited (supra) show that in that
case also, a document “Pharkat Patra” was executed and on the basis
of that document, the Court held that the parties were living separate by
mutual consent and so in view of the aforesaid provisions of Code of
Criminal Procedure, the wife was not entitled to get the maintenance. In
the case of Shrawan cited (supra), two separate documents like divorce
deed and consent deed were executed. It was held that the wife had
started living separate by mutual consent under the documents and she
had surrendered right of maintenance. Similar facts were there in the
case of Gajanan cited (supra). In other two reported case, the High
Court held that the parties were living separate by mutual consent under
similar document and so, the wife was not entitled to get maintenance.
The case of Popat cited (supra) was considered by this
Court in the case reported as [ 2005 (3) Mh.L.J. 137 ], Bombay High
Court ( Tajaswini d/o Anandrao Tayade and another Vs.
Chandrakant Kisanrao Shirsat and another ). In this case, this Court
has observed that if as per the law, marriage cannot be dissolved unless
there is a decree of divorce passed by the competent Court, such
consent document of divorce cannot dissolve the marriage. This Court
further held that such document cannot be used to hold that there has
been relinquishment of right of maintenance. Thus, this Court held that
the facts of Tejaswini’s case cited (supra) were different from the case of
Popat cited (supra) decided already by this Court. It is already observed
that in view of the object behind the provisions and the nature of
defences available to the husband, each case needs to be decided on
the facts of that case.
The facts of present case are different from the aforesaid
reported cases. Careful perusal of the said document in this case
shows that there was no specific relinquishment of right of maintenance,
though the wife had undertaken not to make any claim against the
husband. This document is titled as divorce document and not as
relinquishment deed. The document does not show that the wife was
living separate without any sufficient reason. From this document, no
blame can be attributed to the wife for a separate residence and the
document shows that the parties were already living separate and the
separate residence was not under mutual consent or due to the fault of
the wife. On the contrary, the rival cases and the document show that
there was no alternative before the wife than to live separate and then
the husband tried to obtain divorce by making promise of making
provisions for the maintenance of wife and the children. The husband
has come with a case that he had made such provision, but there is no
convincing evidence on this defence of the husband. The reported case
of [ 1999 Bom.C.R. (Cri.) 74 ], Bombay High Court, ( Smt.Sushilabai
w/o Ravan Patil Vs. Ravan Elji Patil and another ), cannot be of use
in the present facts. In the present case, no amount was paid under the
document and there is no convincing evidence on the payment of
consideration. Reliance was placed by the learned counsel for the
Respondents on the case reported as [ 2009 (0) BCI 665 ] Aurangabad
Bench of Bombay High Court, ( Satyabhambai w/o. Balasaheb
Suryawanshi Vs. Balasaheb s/o Namdevrao Suryawanshi ). The
facts of this case were somewhat similar to the preset case. In this
case, this Court has held that no inference of divorce can be drawn from
such document and further if the parties were already living separate, it
cannot be held that under the document, they had started living
separately.
11
If the “Pharkat Patra” produced in this Court is treated as
the proof of customary divorce, in that case also, in view of the aforesaid
provisions of the Code of Criminal Procedure, the husband cannot avoid
the liability. If there there was the divorce under the document, the
husband cannot take defence that the wife has been living separate
without sufficient cause. If the wife was already living separate, there
was sufficient cause for her and so, this document cannot help the
husband to avoid the liability. It is not possible to draw inference that the
parties are already living separate by mutual consent or the wife was
living separate without sufficient reason. It is already observed that in
view of the facts of the case, it cannot be inferred that there was
relinquishment of right of maintenance. If there was no divorce obtained
under the document, then in view of the aforesaid provisions, it needs to
be held that there was no question of relinquishment of the right of
maintenance. In the case reported as [ 1996 (1) SCC 39 ], ( Gurmit
Kaur Vs. Surjit Singh Alias Jeet Singh ), the Apex Court has
discussed the position of the divorcee after such divorce. It is observed
that in such a case, there will be no question considering the defence of
separate residence by mutual consent after the divorce.
The discussion above shows that there is no possibility of
12
interference in the decision given by the Sessions Court. In the result,
the petition stands dismissed.
[ T.V. NALAWADE, J. ]
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