of Narendrabhai Chandubhai Shah V/s. State of Gujarat,
reported in 2013 (O) GLHEL-HC-231390 wherein, the Court
has construed the expression of ‘wife’ in the context of Section
125 of Cr.P.C. Here also, a compromise between the parties
took place and the proceedings came to be withdrawn by both
the sides and the decree in terms of compromise took place
and the application filed by the wife seeking maintenance
came to be partly allowed and the Revisional Court confirmed
the order of maintenance. It is in that context it has been held
that a woman who is a wife as per the explanation of Section
125 continues to be the wife even if divorced and not
remarried and she cannot be denied the maintenance under
Section 125. A right of a wife who is in destitute condition to
get the maintenance from her husband is always available to
her. Any compromise or a condition contained in the
agreement held to be against the public policy and not valid
and thereby, after referring the same, the Court has dismissed
the plea of the husband. While passing the judgment, the
Hon’ble Court has also taken into consideration the case of
the Apex Court as referred to above and therefore, in the
opinion of this Court, these two decisions cited learned
counsel for the respondents can come to the rescue and in the
background of these facts and circumstances, the petition
being devoid of merits, deserves to be dismissed.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 2267 of 2011
RAJENDRABHAI VIRJIBHAI MAVADIA
V
STATE OF GUJARAT & 3.
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date :5/08/2016
Citation:2016 CRLJ4487 Guj
1. Present petition is filed for the purpose of seeking
quashing and setting aside the judgment and order dated
30.7.2012 passed in Criminal Misc. Application No.224 of
2007 by the learned JMFC, Mangrol, as also the judgment
dated 21.7.2011 passed by the learned Additional Sessions
Judge, Junagadh in Criminal Revision Application No.99 of
2010.
2. While challenging the said concurrent decisions, the
petitioner has brought the case on premise that on 13.4.2007,
marriage between the petitioner and respondent No.2 came to
an end by virtue of execution of divorce deed. It was the case
of the petitioner that said deed contains full and final
compensation which has been arrived at and paid by the
petitioner. It has been stated that on 27.11.2007, immediately
thereafter by suppressing the fact of divorce deed, an
application for seeking maintenance came to be filed by
respondent No.2. On 10.6.2010, vide Exh.22 the petitioner has
filed detailed reply before the learned Magistrate and by
opposing the application for maintenance, it has been stated
that overall settlement had already taken place wherein, as a
full and final settlement amount has already been determined
not only with respect to the petitioner but for children as well
and therefore, contended before the Court below that
respondent No.2 is not entitled to seek any maintenance
further. The petitioner's case is that despite the aforesaid fact
having been brought to the notice of the learned Magistrate,
vide order dated 30.7.2010, the learned Magistrate was
pleased to order an amount of maintenance and ordered to
pay Rs.3000/- per month to respondent No.1, namely, wife and
Rs.2000/- p.m. for original applicant No.2 – minor Surbhi and
also amount of Rs.2000/- is ordered to be paid to original
applicant No.3, who is also a minor son and therefore, has
awarded a total sum of Rs.7000/- per month from the date of
application to be paid continuously and Rs.500/- is awarded by
way of cost while passing said order.
3. It is this judgment and order dated 30.7.2010 was made
the subject matter of Criminal Revision Application No.99 of
2010 filed before the learned Sessions Judge, Junagadh, interalia,
reiterating that by virtue of divorce deed, every right is
extinguished by way of volition and therefore, none of the
applicants are entitled to seek any maintenance. The detailed
adjudication has already been taken place by leading evidence
before the learned Magistrate and therefore, in Revision the
petitioner has contended that gross material irregularity is
committed and requested the learned Sessions Judge to set
aside the order passed by the learned Magistrate in exercise
of revisional jurisdiction. The said Revision Application came
up for consideration before the learned 6th Ad-hoc Additional
Sessions Judge, Junagadh in the month of July,2011 and vide
order dated 21.7.2011, said Revision Application came to be
dismissed and by virtue of which, the order passed by the
learned Magistrate came to be confirmed. It is this order as
also the order of learned Magistrate are made the subject
matter of the present petition by invoking jurisdiction of this
Court under Article 227 of the Constitution of India and in the
background of this fact, the present petition is taken up for
hearing.
4. Mr.Shakeel Qureshi, learned counsel appearing on
behalf of the petitioner – husband has contended that both the
courts below have grossly erred in ignoring the material
aspect of the matter and has committed an error. It has been
contended by learned counsel for the petitioner that the
divorce has already taken place on 13.4.2007 and the said
agreement came to be deduced in writing which is signed by
the respondent for herself as well as on behalf of the children
as guardian of them and has readily agreed to arrive at a
figure which is mentioned in the agreement as a full and final
settlement and therefore, now to turn around from the said
agreement, is nothing but an abuse of process of law by the
respondents. It has also been contended by learned counsel
for the petitioner that said agreement was very much part of
the proceedings before the learned Magistrate wherein, the
respondent – wife has not disputed her signature nor has
disputed the factum of separation. The marriage in the instant
case solemnized on 24.5.1991 and since the marriage itself
has been broken down and as a part of full and final
settlement, amount is secured by the respondents, counsel for
the petitioner has urged the Court not to allow the
respondents to turn around from the binding given in the
aforesaid writing, namely, the agreement.
4.1 Learned counsel for the petitioner has submitted that for
the purpose of setting aside an agreement, a civil suit also
came to be filed by respondent – wife which has been
dismissed by the civil court. The learned counsel candidly
submitted that no doubt, the appeal against the said dismissal
of the suit is pending for further adjudication but, has
contended that no stay is granted by the appellate court. It
has also been contended that the learned Magistrate has
committed a material irregularity in ignoring the material on
record which is prima facie established the fact as mentioned
as above and therefore, that material irregularity in exercising
jurisdiction ought to have been corrected by the revisional
authority, namely, revisional court. Learned counsel further
submitted that even the error which has been committed by
the learned Magistrate is reiterated and repeated by the
revisional court as well and therefore, both the orders passed
by the courts below are not tenable in the eye of law, based
upon material irregularity and the finding arrived at being
perverse, deserves to be corrected by allowing the petition.
4.2 Learned counsel submitted that respondent – wife with
the children has long back separated herself from the
petitioner in April,2007 and thereafter, there is no
relationship of husband and wife subsisting and therefore, in
the absence of that, allowing the maintenance to the wife is
impermissible in law. To substantiate this contention, learned
counsel for the petitioner is relying upon the decision
delivered by the Punjab and Haryana High Court in case of
Puran Chand V/s. Palo, reported in 1986 (2) Crimes 177
wherein, in almost similar situation - counsel submitted – no
maintenance is permissible to a ex-wife. Learned counsel for
the petitioner has drawn the attention of this Court to the
documents whereby, the payment of amount being determined
in the agreement is realized by the respondent and has also
drawn specific attention to the reply which has been filed by
the petitioner in the court below and contended that the
amount which has been determined is already encashed by
the respondent and therefore, respondent – wife is not entitled
to turn around from the said stand and claim further amount
of any nature. Learned counsel has further drawn attention of
this Court to a decision of this Court rendered in Criminal
Revision Application No.674 of 2014 delivered on 5.8.2015 in
which also, the Court has taken such kind of circumstance has
ordered that wife is not entitled to claim any maintenance and
thereby, learned counsel submitted that the orders passed by
the courts below are required to be set aside. No further
submissions are made by learned counsel for the petitioner.
5. As against this, Mr.Pravin Patel, learned counsel for
Mr.V.H.Kanara, learned counsel appearing for respondent
Nos.2, 3 and 4 has contended that both the courts below have
rightly exercised the discretion and have confirmed the order
of maintenance and there is no need to dislodge the finding
which has been arrived at in the background of facts and
circumstance of the case. Learned counsel also contended
that basically present petition is directed against the
concurrent decisions delivered by the courts below and
therefore, looking to the scope of Article 227 of the
Constitution of India, such concurrent decisions may not be
allowed to be disturbed at the instance of the petitioner. It has
also been contended that the amount which has been
mentioned in the agreement which is in dispute is thoroughly
inadequate and not proportionate and it is a settled position of
law that even if the some amount at the relevant time is
agreed upon, it is always open for the respondent – wife in the
change of circumstance to claim the amount of maintenance
and there is no law which prohibits the wife to seek a review
by filing appropriate proceedings. It is also contended by the
learned counsel for the respondents that this agreement of
divorce is merely on a stamp paper and not even registered
one and same is not culminated finally into a lawful decree of
a competent court and therefore, learned counsel submitted
that much importance may not be given to that piece of paper
wherein, the divorce is said to have taken place. Learned
counsel submitted that this very disputed document is the
subject matter of a civil suit filed by the respondent – wife and
of course, the suit came to be dismissed but, an appeal against
the same is very much pending before the court below and the
appellate forum is seized with the issue related to this deed of
divorce and therefore, learned counsel submitted that if
ultimately the appeal is allowed and the agreement is set
aside then, irreversible situation will be created for the
respondent if these orders impugned in the petition are
quashed and set aside and therefore, to avoid that eventuality,
learned counsel for the respondents submitted that not to
interfere with in extraordinary jurisdiction of this Court.
5.1 Learned counsel for the respondents submitted that the
amount which has been determined of Rs.50,000/- is a very
meager amount and can never be said to be a proportionate or
adequate amount and even for the children also Rs.1 one lac
each is not a possible amount to meet with the present
demand of dearness and therefore, learned counsel submitted
that respondent – wife has rightly claimed the amount of
maintenance by filing an application and has also contended
that the courts below have rightly exercised their due
discretion vested in the statute. Learned counsel submitted
that simply because an agreement came to be entered into
assuming without admitting but the said document cannot be
said to be a waiver of right for all time to come on behalf of
the respondents to claim any amount of maintenance. Learned
counsel further submitted that till date, wife has not
remarried and so long as she is holding the status of divorced
wife, she can claim maintenance as a matter of right and
therefore, in the present days of acute dearness, the courts
below are justified in awarding the amount of maintenance
which has already reflected in the order and therefore,
requested the Court not to disturb the orders passed by the
courts below.
6. Mr.K.P.Raval, learned APP for the State has supported
the case of the respondents and pointed out to the Court that
this petition is directed against the concurrent decisions and
therefore, extraordinary jurisdiction may not be exercised and
has also contended that construction of a document in
question may not be allowed to be a subject matter of exercise
of extraordinary jurisdiction and thereby, opposed the
petition.
7. Having heard the learned counsels appearing for the
parties and having gone through the material on record and
having perused the orders and independently assessing the
situation, following facts are emerging at the threshold (i) that
the respondent – wife has not re-married (ii) respondent –wife
has seriously disputed the agreement in question i.e.
agreement dated 13.4.2007 and has filed a suit and against
the order of the suit, she has also filed a substantive appeal
which is at present pending before the court below (iii) it is
also revealed from the material on record that the document
in question dated 13.4.2007 is not a registered document. But,
at the same time, it is not culminated into final decree of a
competent court and therefore, no decree or divorce is
available on record (iv) the amount which has been
determined also prima facie appearing to be a meager amount
and the wordings of the document in question are such that
the same might have been in compelling circumstance
accepted. With the result, the respondent – wife was dragged
to civil litigation for challenging the said document.
8. From the aforesaid background of the facts and
circumstance, if the detail order which has been passed by the
Magistrate to be looked into wherein, a categorical conclusion
is arrived at that respondent – wife is entitled to seek a
maintenance and this conclusion is based upon the detail
examination of document in question as well as based upon
the evidence in detail adduced by the respective side. It has
also been concluded by the court below i.e. Magistrate that
looking to the cross-examination, it is revealed that the
husband has driven out the wife and the children which has
necessitated the wife to claim maintenance. Detailed narration
of evidence and analysis is made while passing an order on
30.4.2010 by the Magistrate and the said finding of fact based
upon material on record came to be confirmed by the Sessions
Judge in exercise of revisional jurisdiction. It is settled
position of law that even if another view is possible then the
revisional forum may not substitute the finding of fact based
upon material on record arrived at by the court below and
therefore, prima facie, it appears that the revisional court has
also exercised the jurisdiction and discretion rightly in
confirming the order passed by the Magistrate.
9. Before dealing with the contentions raised by the
learned counsel for the respective parties, one thing is worth
to be noted that the petition on hand is basically a petition
under Article 227 of the Constitution of India wherein,
challenge is made to concurrent decisions. The law is well
settled by series of decisions on exercise of jurisdiction under
Article 227 of the Constitution of India. In brief, several
decisions have taken the view that against the concurrent
decisions, unless so perverse, normally the extraordinary
jurisdiction may not be exercised. Further, Article 227 of the
Constitution of India is basically a supervisory jurisdiction and
the Court has to see only that whether the courts below have
exercised their discretion within the bounds of their authority
or not. Unless and until patent illegality is committed, no
exercise of extraordinary jurisdiction is to be undertaken.
There are large number of cases on these issues. However, to
pinpoint few would suffice to deal with the case on hand. Few
parameters are prescribed by the Hon’ble Apex Court in a
decision in case of Sameer Suresh Gupta through PA
Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9
SCC 374 which is worth to be noted. Relevant Para.6 and 7 of
the said decision are quoted as under :
“6. In our view, the impugned order is liable to be
set aside because while deciding the writ petition
filed by the respondent the learned Single Judge
ignored the limitations of the High Court's
jurisdiction under Article 227 of the Constitution.
The parameters for exercise of power by the High
Court under that Article were considered by the two
Judge Bench of this Court in Surya Dev Rai vs. Ram
Chander Rai and others (2003) 6 SCC 675. After
considering various facets of the issue,the two Judge
Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from
01-07-2002 in Section 115 of Code of Civil Procedure
cannot and does not affect in any manner the
jurisdiction of the High Court under Articles 226 and
227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which remedy
of revision has been excluded by the CPC
Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and continue to be
subject to, certiorari and supervisory jurisdiction
of the High Court.
(3) Certiorari, under Article 226 of the Constitution,
is issued for correcting gross errors of jurisdiction, i.e.
when a subordinate court is found to have acted
(i) without jurisdiction - by assuming jurisdiction
where there exists none, or (ii) in excess of its
jurisdiction - by overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant disregard of law
or the rules of procedure or acting in violation of
principles of natural justice where there is no
procedure specified, and thereby occasioning
failure of justice.
(4) Supervisory jurisdiction under Article 227 of
the Constitution is exercised for keeping the
subordinate courts within the bounds of their
jurisdiction. When the subordinate Court has
assumed a jurisdiction which it does not have or has
failed to exercise a jurisdiction which it does have or
the jurisdiction though available is being exercised by
the Court in a manner not permitted by law and failure
of justice or grave injustice has occasioned thereby, the
High Court may step in to exercise its supervisory
jurisdiction.
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to correct
mere errors of fact or of law unless the following
requirements are satisfied : (i) the error is manifest
and apparent on the face of the proceedings such
as when it is based on clear ignorance or utter
disregard of the provisions of law, and (ii) a grave
injustice or gross failure of justice has occasioned
thereby.
(6) A patent error is an error which is self-evident,
i.e. which can be perceived or demonstrated without
involving into any lengthy or complicated argument or
a long-drawn process of reasoning. Where two
inferences are reasonably possible and the subordinate
court has chosen to take one view, the error cannot be
called gross or patent.
(7) The power to issue a writ of certiorari and
the supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where the
judicial conscience of the High Court dictates it to act
lest a gross failure of justice or grave injustice
should occasion. Care, caution and circumspection
need to be exercised, when any of the abovesaid two
jurisdictions is sought to be invoked during the
pendency of any suit or proceedings in a subordinate
court and the error though calling for correction is
yet capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred there
against and entertaining a petition invoking
certiorari or supervisory jurisdiction of High Court
would obstruct the smooth flow and/or early disposal of
the suit or proceedings. The High Court may feel
inclined to intervene where the error is such, as, if not
corrected at that very moment, may become incapable
of correction at a later stage and refusal to
intervene would result in travesty of justice or where
such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not covert itself into a
Court of Appeal and indulge in re-appreciation or
evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical
character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and those
calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction exercised
by the High Courts in India unlike English courts
has almost obliterated the distinction between the
two jurisdictions. While exercising jurisdiction to issue
a writ of certiorari the High Court may annul or set
aside the act, order or proceedings of the subordinate
courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High
Court may not only give suitable directions so as to
guide the subordinate court as to the manner in
which it would act or proceed thereafter or afresh,
the High Court may in appropriate cases itself make
an order in supersession or substitution of the order
of the subordinate court as the court should have made
in the facts and circumstances of the case."
7. The same question was considered by another
Bench in Shalini Shyam Shetty and another vs.
Rajendra Shankar Patil (2010) 8 SCC 329, and it was
held:
"(a) A petition under Article 226 of the Constitution
is different from a petition under Article 227. The
mode of exercise of power by the High Court under
these two articles is also different.
(b) In any event, a petition under Article 227 cannot be
called a writ petition. The history of the conferment
of writ jurisdiction on High Courts is substantially
different from the history of conferment of the power
of superintendence on the High Courts under Article
227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise
of its power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or
courts inferior to it. Nor can it, in exercise of this
power, act as a court of appeal over the orders of the
court or tribunal subordinate to it. In cases where an
alternative statutory mode of redressal has been
provided, that would also operate as a restrain on the
exercise of this power by the High Court.
(d) The parameters of interference by High Courts in
exercise of their power of superintendence have been
repeatedly laid down by this Court. In this regard the
High Court must be guided by the principles laid down
by the Constitution Bench of this Court in Waryam
Singh and the principles in Waryam Singh have
been repeatedly followed by subsequent Constitution
Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh,
followed in subsequent cases, the High Court in
exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and
courts subordinate to it, "within the bounds of their
authority".
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which is
vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of
superintendence when there has been a patent
perversity in the orders of the tribunals and courts
subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken
by the tribunals or courts subordinate to it, is a
possible view. In other words the jurisdiction has to be
very sparingly exercised.
(i) The High Court's power of superintendence under
Article 227 cannot be curtailed by any statute. It has
been declared a part of the basic structure of the
Constitution by the Constitution Bench of this Court in
L. Chandra Kumar v. Union of India and therefore
abridgment by a constitutional amendment is also very
doubtful.
(j) It may be true that a statutory amendment of a
rather cognate provision, like Section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At
the same time, it must be remembered that such
statutory amendment does not correspondingly
expand the High Court's jurisdiction of
superintendence under Article 227.
(k) The power is discretionary and has to be
exercised on equitable principle. In an appropriate
case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it transpires
that the main object of this article is to keep strict
administrative and judicial control by the High Court
on the administration of justice within its territory.
(m) The object of superintendence, both administrative
and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in
such a way as it does not bring it into any
disrepute. The power of interference under this article
is to be kept to the minimum to ensure that the wheel
of justice does not come to a halt and the fountain of
justice remains pure and unpolluted in order to
maintain public confidence in the functioning of the
tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of
relief in individual cases but should be directed for
promotion of public confidence in the administration of
justice in the larger public interest whereas Article
226 is meant for protection of individual grievance.
Therefore, the power under Article 227 may be
unfettered but its exercise is subject to high degree
of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power
will be counterproductive and will divest this
extraordinary power of its strength and vitality."
10. In a decision of the Hon’ble Apex Court in case of State
of Haryana and Ors. V/s. Manoj Kumar, reported in
(2010) 4 SCC 350 wherein, the Hon’ble Apex Court has
propounded a proposition that extraordinary jurisdiction
normally not to be exercised when the Court is dealing with
the concurrent finding of fact or the decision unless it is so
perverse or patently illegal. Relevant Para.29 and 34 are
worth to be taken note of.
“29. We have heard the learned counsel for the parties
at length. We are clearly of the opinion that the High
Court, in the impugned judgment, has erred in
interfering with the concurrent findings of fact of the
courts below under its limited jurisdiction under Article
227 of the Constitution. The High Court erroneously
observed that the "the authenticity of the decree passed
by the court cannot be questioned. Therefore, the
genuineness of the sale price has to be presumed." This
finding of the High Court cannot be sustained. It would
have far reaching ramifications and consequences. If
the genuineness of the sale price entered into by the
buyer and the seller cannot be questioned, then in
majority of the cases it is unlikely that the State would
ever receive the stamp duty according to the circle rate
or the collector rate. The approach of the High Court is
totally unrealistic.
34. This order was upheld by the Commissioner. The
High Court while exercising its jurisdiction under
Article 227 has set aside the orders passed by the
District Collector, Faridabad and upheld by the
Commissioner, Gurgaon without any basis or rationale.
Apart from the jurisdiction, even what is factually
stated in the order of the District Collector, Faridabad
as upheld by the Commissioner, Gurgaon is
unexceptionable and any interference was totally
unwarranted.”
11. In another decision in case of S.J.Ebenezer V/s.
Velayudhan, reported in AIR 1998 SC 746, the Apex Court
has, in Para.16, propounded that even if another view is
possible, the same may not be allowed to be substituted.
12. In another decision in case of Mohd. Yunus V/s.
Mohd. Mustaqim and Ors., reported in AIR 1984 SC 38
wherein, the Hon’ble Apex Court has propounded that even if
there is an error of law, the same cannot be corrected in
exercise of jurisdiction under Article 227 of the Constitution of
India. Relevant Para.7 of the said decision is reproduced as
under :
“7. The supervisory jurisdiction conferred on the
High Courts udder Art. 227 of the Constitution is
limited "to seeing that an inferior Court or Tribunal
functions within the limits of its authority", and not
to correct an error apparent on the face of the
record, much less an error of law. In this case there
was, in our opinion, no error of law much less an error
apparent on the face of the record. There was no
failure on the part of the learned Subordinate Judge to
exercise jurisdiction nor did he act in disregard of
principles of natural justice. Nor was the procedure
adopted by him not in consonance with the procedure
established by law. In exercising the supervisory power
under Art.227, the High Court does not act as an
Appellate Court or Tribunal. It will not review or reweigh
the evidence upon which the determination of
the inferior court or tribunal purports to be based or to
correct errors of law in the decision.”
13. Therefore, these are the decision in which the Hon’ble
Apex Court has laid down a proposition that unless and until
there is patent irregularity material in nature in exercising
jurisdiction and the findings are so perverse, only in those
circumstances, the jurisdiction under Article 227 of the
Constitution of India can be exercised and therefore, keeping
this proposition of law in mind, as stated hereinabove, the
case is not that of a nature which may allow the present Court
to deviate from the said proposition of law and therefore, this
Court is of the opinion that the orders passed by the courts
below are not required to be quashed and set aside, more
particularly in view of the fact that respondent – wife has not
remarried and a substantive appeal proceedings are still
pending questioning the document in controversy and prima
facie, the figure which has been mentioned in the document
appearing to be too meager to justify a permanent alimony
amount. An evaluation of the entire evidence as a whole even
independently from what has been assessed by the courts
below, this Court is of the opinion that in the background of
present facts and circumstance, the orders are not required to
be disturbed, more particularly in exercise of extraordinary
jurisdiction.
14. Now, dealing with the decisions which have been cited
by the respective counsel and having gone through, it appears
that the same are to be analyzed so as to see that no party to
the petition left with the feeling that decisions, though relied
upon, have not been applied in true perspective and therefore,
keeping this fact in mind, first of all, I may consider the
decisions relied upon by learned counsel appearing for the
petitioner in case of Puram Chand (Supra). In that case, the
Punjab & Haryana High Court, in a brief order, relying upon
the divorce deed executed between the parties as a part of
custom, found that having agreed upon in the said customary,
divorced wife is not entitled to claim any maintenance and in
that background, the Court has passed the order.
15. The present case on hand is governed by the relationship
of husband and wife under the provisions of the Hindu
Marriage Act and there is nothing on record which has been
submitted that the customary divorce is permissible and
undisputedly, the unregistered deeds on paper is treated as a
lawful divorce by the petitioner and contended that
respondent – wife is not entitled to claim maintenance by
virtue of that deed. A fact is to be mentioned here that this
very document of divorce is subject matter of an appeal which
is yet pending before the appropriate appellate forum
awaiting final out come and therefore, this scenario of the
present is quite different from what has been appearing in the
case of Puram Chand (Supra). From the bare reading of said
brief order, it would appear that divorce deed Exh.1 of that
particular case was not appearing to be a subject matter of
challenge anywhere and in that circumstance, the High Court
has delivered a brief order which may not be helpful to the
petitioner in the present case.
16. The next decision which has been cited by learned
counsel for the petitioner is of a coordinate bench rendered in
CR.RA No.674 of 2014 delivered on 5.8.2015 and relying upon
the same, learned counsel submitted that in the said case, this
Court was dealing with a situation where Section 125
application came to be filed after almost a period of 20 years
and in that case, it is appearing that the Court was concerned
with a decree of divorce and therefore, in that set of
circumstance, the Court was of the opinion that wife if for a
long time is unable to make any maintenance application then,
per-se would not entitle to claim maintenance and more
particularly in that case, there was an exchange of land in lieu
of permanent maintenance which had already been
transferred and thereafter, after a pretty long period, an
application came to be filed and therefore, the background of
that fact is quite distinct from the set of circumstance
appearing in the present case and therefore, in humble
opinion of this Court, said decision delivered on 5.8.2015 is
not applicable to the facts of the case on hand.
17. As against this, Mr.Patel, learned counsel appearing on
behalf of respondent Nos.2 and 3 has submitted that divorced
wife continues to enjoy status of wife for the purpose of
claiming maintenance and relied upon the decision in case of
Rohtash Singh V/s. Smt.Ramendri & Ors., reported in AIR
2000 SC 952, more particularly Para.8, 9 and 11 which
reads, thus;
“8. Admittedly, in the instant case, the respondent is a
divorced wife. The marriage ties between the parties do
not subsist. The decree for divorce was passed on 15th
of July, 1995 and since then, she is under no obligation
to live with the petitioner. But though the marital
relations came to an end by the divorce granted by the
Family Court under Section 13 of the Hindu Marriage
Act, the respondent continues to be "wife" within the
meaning of Section 125 Cr.P.C. on account of
Explanation (b) to Sub-section (1) which provides as
under :-
"Explanation. - For the purposes of this Chapter -
(a) ...................................................................
(b) "wife" includes woman who has been divorced by, or
has obtained a divorce from her husband and has not
remarried."
9. On account of the Explanation quoted above, a
woman who has been divorced by her husband on
account of a decree passed by the Family Court under
the Hindu Marriage Act, continues to enjoy the status of
a wife for the limited purpose of claiming Maintenance
Allowance from her ex-husband. This Court in Captain
Ramesh Chander Kaushal v. Mrs. Veena Kaushal an
Others, AIR (1978) SC 1807, observed as under :-
"9. This provision is a measure of social justice and
specially enacted to protect women and children
and falls within the constitutional sweep of Article
15(3) reinforced by Art.39. We have no doubt that,
sections of statutes calling for construction by
courts are not petrified print but vibrant words
with social functions to fulfil. The brooding
presence of the constitutional empathy for the
weaker sections like women and children must
inform interpretation if it has to have social
relevance. So viewed, it is possible to be selective
in picking out that interpretation out of two
alternatives which advances the cause-the cause of
the derelicts."
9A Claim for maintenance under the first part of
Section 125 Cr.P.C. is based on the subsistence of
marriage while claim for maintenance of a divorced
wife is based on the foundation provided by Explanation
(b) to Sub-section (1) of Section 125Cr. P.C. If the
divorced wife is unable to maintain herself and if she
has not remarried, she will be entitled to Maintenance
Allowance. The Calcutta High Court had an occasion to
consider an identical situation where the husband had
obtained divorce on the ground of desertion by wife but
she was held entitled to Maintenance Allowance as a
divorced wife under Section 125 Cr.P.C. and the fact
that she had deserted her husband and on that basis a
decree for divorce was passed against her was not
treated as a bar to her claim for maintenance as a
divorced wife. See : Sukmar Dbibar v. Smt.Anjali Dasi,,
(1983) Crl. L.J. 36. The Allahabad High Court also, in
the instant case, has taken a similar view. We approve
these decisions as they represent the correct legal
position.
11. Learned counsel for the petitioner then contended
that the Maintenance has been allowed to the
respondent from the date of the application. The
application under Section 125 Cr.P.C. was filed by the
respondent during the pendency of the civil suit for
divorce under Section 13 of the Hindu Marriage Act. It
is contended that since the decree of divorce was
passed on the ground of desertion by respondent, she
would not be entitled to Maintenance for any period
prior to the passing of the decree under Section 13 of
the Hindu Marriage Act. To that extent, learned counsel
appears to be correct. But for that short period, we
would not be inclined to interfere.”
18. In another decision of the very coordinate bench in case
of Narendrabhai Chandubhai Shah V/s. State of Gujarat,
reported in 2013 (O) GLHEL-HC-231390 wherein, the Court
has construed the expression of ‘wife’ in the context of Section
125 of Cr.P.C. Here also, a compromise between the parties
took place and the proceedings came to be withdrawn by both
the sides and the decree in terms of compromise took place
and the application filed by the wife seeking maintenance
came to be partly allowed and the Revisional Court confirmed
the order of maintenance. It is in that context it has been held
that a woman who is a wife as per the explanation of Section
125 continues to be the wife even if divorced and not
remarried and she cannot be denied the maintenance under
Section 125. A right of a wife who is in destitute condition to
get the maintenance from her husband is always available to
her. Any compromise or a condition contained in the
agreement held to be against the public policy and not valid
and thereby, after referring the same, the Court has dismissed
the plea of the husband. While passing the judgment, the
Hon’ble Court has also taken into consideration the case of
the Apex Court as referred to above and therefore, in the
opinion of this Court, these two decisions cited learned
counsel for the respondents can come to the rescue and in the
background of these facts and circumstances, the petition
being devoid of merits, deserves to be dismissed.
19. In the background of facts and circumstances, in the
opinion of this Court, no interference is required in the
conclusion arrived at by the courts below, more particularly in
exercise of extraordinary jurisdiction. Hence, the present
Special Criminal Application is dismissed. Rule is discharged.
Interim relief granted earlier stands vacated.
(A.J. SHASTRI, J.)
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