Law Web: Bombay HC: Court should not deny maintenance to the wife if she is earning some income

However, the fact that the wife carries on some business and earns some

money is not the end of the matter. Neither the mere potential to earn nor the

actual earning, howsoever meager it may be, is sufficient to deny the claim of

maintenance. The learned Judge, Family Court was justified in placing reliance

on the judgment of the Supreme Court in the case of Sunita Kachwa vs. Anil Kachwa III 2014 (DMC) 878 S.C., wherein it was observed that, ‘the learned counsel for the respondent

submitted that the appellant-wife is well qualified, having post graduate degree in

Geography and working as a teacher in Jabalpur and also working in Health

Department. Therefore, she has income of her own and needs no financial

support from respondent. In our considered view, merely because the appellantwife

is a qualified post graduate, it would not be sufficient to hold that she is in a

position to maintain herself. Insofar as her employment as a teacher in Jabalpur,

nothing was placed on record before the Family Court or in the High Court to

prove her employment and her earnings. In any event, merely because the wife

was earning something, it would not be a ground to reject her claim for

maintenance.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.164 OF 2019

Mr.Sanjay Damodar Kale Vs Ms.Kalyani Sanjay Kale,

CORAM : N.J. JAMADAR, J

PRONOUNCED ON : 26th May 2020

1. The challenge in this Revision Application is to the judgment and

order dated 7th February, 2019 passed by Judge, Family Court No. 2, Pune in

Petition No.E-102 of 2016, whereby the learned Judge was persuaded to order

payment of an amount of Rs.15,000/- per month to the Respondent-wife from the

date of application and an amount of Rs.7,000/- as cost of litigation under section

125 of the Code of Criminal Procedure 1973 (“the Code”).

2. For the sake of convenience and clarity, the parties are hereinafter referred

to in the capacity in which they were arraigned before the learned Judge, Family

Court.

3. Shorn of the necessary details the background facts leading to this

Application can be stated as under:

The marriage of the Applicant was solemnized with the Respondent on 12th

November, 1997 in accordance with Hindu religious rites and ceremonies. The

Applicant claimed, since inception of marital life the Respondent treated the

Applicant with extreme cruelty. The Applicant was subjected to harassment in

order to coerce her to meet unlawful demands. The Respondent had dropped the

Applicant at her parental home at Satara in the month of January, 1999. Despite

repeated assurances the Respondent did not come to fetch back the Applicant to

her marital home. Ultimately with the intervention of police the Applicant was

allowed to enter her matrimonial home at Mahatma Society, Pune. Thereafter the

Respondent and Applicant moved out of the matrimonial home and started to

reside separately from the in-laws of the Applicant, at Karve Nagar, Pune.

Subsequently, the Applicant and Respondent shifted to an apartment at Sinhgad

Road, Pune.

In the month of April, 2007 the Respondent expressed his desire to obtain

divorce from the Applicant. When the Applicant remonstrated, the Respondent illtreated

her. In order to avoid harassment at the hands of the Respondent the

Applicant signed the documents for presenting a Petition for obtaining divorce by

mutual consent as the Respondent had assured the Applicant that he would

continue to maintain the marital relationship with her despite a paper decree of

divorce. Accordingly, a decree of divorce by mutual consent was obtained on 25th

October, 2007. Despite, the decree of dissolution of marriage, the Respondent

continued to visit the Applicant at her apartment at Singhgad road and had

marital relations as well.

4. From the month of September, 2012 the Respondent stopped the visits to

the house of the Applicant. The Respondent had not made any provision for the

maintenance and livelihood of the Applicant. The Applicant has no source of

income. The Applicant could sustain herself on the financial support of her father.

In contrast, the Respondent has sufficient means. The Respondent deals in a

thriving business under the name and style “P.C.Care”. The Respondent owns a

huge bungalow at Mahatma Society and another plot of land at Budhwar Peth,

Pune. The Respondent also owns an office premises admeasuring 400 sq.ft. at

Shaniwar Peth, Pune. Despite having sumptuous income the Respondent

refused and neglected to provide for the necessities of life of the Applicant.

Hence, the Applicant was constrained to prefer the application for award of

maintenance at the rate of Rs.50,000/- per month, under section 125 of the

Code.

5. The Respondent appeared and resisted the claim by filing written

statement. The Respondent controverted the allegations that the Applicant was

subjected to ill-treatment. In contrast, according to the Respondent, the Applicant

was suffering from psychological illness and thus the marriage could not be

consummated. At the instance of the Respondent, the Applicant availed

treatment from leading sexologists yet there was no improvement in the

psychological condition of the Applicant. As the marriage could not be

consummated on account of the psychological problems, which the Applicant

suffered from, the Respondent had filed a Petition under section 12(1)(a) and

section 13(1)(ia) of the Hindu Marriage Act, 1955 (‘the Act,1955’). In a counterblast,

the Applicant took undue advantage of the police machinery and forced

herself into the matrimonial house. The Applicant and Respondent resided

separately in a flat at Karve Nagar. Thereafter, the Applicant and Respondent

moved to a flat on Singhgad road in August, 2004. The Applicant was desirous of

perusing her carrier and opened a beauty parlor under the name and style of

“Kalyani Beauty Parlor”.

6. Despite earnest efforts, the marriage could not be consummated. Hence,

the Applicant and Respondent mutually agreed to seek divorce by mutual

consent. The Applicant had become financially independent as she was

successfully running the beauty parlor business. The Applicant, thus, agreed not

to claim any maintenance including Streedhan. The decree of divorce was

passed on the strength of the free volition of the parties. The allegations of the

said decree having been obtained by fraud were thus stoutly denied by the

Respondent.

7. The Respondent further contended that the Respondent got remarried in

the month of January, 2011. Over the period of time, the business of the

Respondent has eroded and is almost on the verge of closure. The bungalow at

Mahatma Society is a property inherited from his late father, in which he has 1/3

share only. The Respondent’s mother, unmarried sister and the second wife are

dependent on the Respondent. The entitlement of the Applicant to claim

maintenance is thus contested by the Respondent.

8. In the backdrop of the aforesaid pleadings, the learned Judge, Family

Court recorded the evidence of Applicant and Respondent in support of, and

opposition to, the claim for maintenance. The parties tendered documents in

support of their rival claims. After appraising the evidence and material on record

the learned Judge, Family Court was persuaded to allow the application holding

inter alia that the Respondent has refused or neglected to maintain the Applicant

who is unable to maintain herself, despite the Respondent having sufficient

means to maintain the Applicant. The learned Judge was of the view that the fact

that the Applicant had given up her claim for maintenance, when the decree for

divorce by mutual consent was passed, does not detract materially from her

claim as such an agreement not to claim maintenance or waive the right of

maintenance was opposed to public policy. The Applicant being a wife, despite

being a divorcee, within the meaning of Explanation (b) to section 125(1) of the

Code, the agreement to reside separately from the Respondent does not

disentitle her from claiming maintenance, held the learned Judge.

9. Being aggrieved by and dissatisfied with, the aforesaid reasons and

findings the Respondent-husband has invoked the revisional jurisdiction of this

Court. I have heard Smt.Seema Sarnaik, the learned counsel for the

Respondent-husband and Mr.Hitesh Vyas, the learned counsel for the Applicantwife

at some length. Perused the material on record.

10. To start with, it would be apposite to note that there is not much

controversy over the marital relationship, which the parties had. It is indisputable

that the marriage was solemnized on 12th November, 1997. Initially the parties

resided in the matrimonial home at Mahatma Colony, Pune along with the in-laws

of the Applicant. Later on, the Applicant and Respondent started to reside

separately in a rented apartment at Karve Nagar. Therefrom, they shifted to

another rented apartment at Singhgad Road, Pune in the year 2004. It is

indubitable that the parties had no issue out of the wedlock. The fact that the

Applicant and Respondent had filed an application for divorce by mutual consent

on 24th April, 2007 and a decree of divorce by mutual consent came to be passed

on 25th October, 2007 is also not much in contest. However, the circumstances

in which the said decree of divorce by mutual consent was obtained are sought

to be put in contest.

11. In the application an endeavor was made by the Applicant to demonstrate

that the said decree of divorce was obtained by fraud. A case was sought to be

set up that the Respondent had persuaded the Applicant to execute documents

and appear before the Court for obtaining the decree of divorce by giving an

assurance that the marital bond would continue despite the decree of divorce

and it would remain a paper decree. The learned Judge, Family Court was not

persuaded to accede to this case of the Applicant. After adverting to the manner

in which the Applicant fared in the cross examination as regards the

circumstances in which the decree of divorce was passed, including the inaction

on the part of the Applicant for almost 9 years to agitate the said grievance of the

decree having been obtained by fraud, the learned Judge, and, in my view,

rightly, came to the conclusion that the said claim of the Applicant did not merit

acceptance. There is no material on record to indicate at any point of time till the

filing of the instant Petition for award of maintenance the Applicant had ever

raised any grievance about the decree of divorce having been obtained by fraud.

Even if the case of the Applicant is taken at par and it is assumed that the

Respondent continued to visit her upto September, 2012, the inaction on the part

of the Applicant from the year 2012 to the year 2016, in which the Petition for

maintenance came to be filed, is rather inexplicable.

12. The learned counsel for the Respondent-husband in the aforesaid setting

of the matter would urge that the learned Judge, Family Court committed a

manifest error in arriving at a finding that the Respondent had refused or

neglected to maintain the Applicant and that the Applicant was unable to maintain

herself. Amplifying the submission, the learned counsel would urge that the

Applicant having voluntarily relinquished her right of maintenance when the

decree of divorce by mutual consent was passed on 25th October, 2007, was not

legally entitled to turn around and seek maintenance from the Respondent.

According to learned counsel for the Respondent, in view of the clear and

unequivocal agreement, not to seek maintenance, which was recorded by the

learned Judge, Family Court while passing the decree of divorce by mutual

consent, the Respondent was under no legal obligation to provide maintenance

to the Applicant. Thus, under no circumstances the finding of refusal or neglect to

maintain could have been recorded against the Respondent.

13. Smt. Sarnaik urged with tenacity that even the finding that the Applicant

was unable to maintain herself is infirm and not borne out by the material on

record. There is unflinching material to demonstrate that when the decree of

divorce was passed, in the year 2007, the Applicant was running the business

under the name and style “Kalyani Beauty Parlor”. This fact is even recorded in

the judgment of the Family Court, whereby decree of divorce was granted. The

fact that the applicant continued to carry on the said business even upto the date

of filing of the application is established by the Respondent by placing documents

on record. Yet the learned Judge, Family Court recorded an erroneous finding

that the Applicant was not carrying on any business and was unable to maintain

herself. This finding vitiated the entire order, urged Smt. Sarnaik.

14. In opposition to this, Mr.Vyas, the learned counsel for the Applicant-wife

stoutly submitted that the defence sought to be put forth by the Respondent is

misconceived. In view of the provisions contained in section 125(1), Explanation

(b) of the Code, wife includes a woman who has been divorced or has obtained a

divorce from her husband and has not remarried. Admittedly, the Applicant has

not remarried. The fact that the Applicant resides separately from the

Respondent in pursuance of the decree of divorce, even if taken at par, thus

does not disentitle the Applicant, being a divorced wife, from claiming

maintenance, urged the learned counsel for the Applicant. The agreement not to

claim maintenance which is in teeth of the statutory provision, the object of which

is to prevent vagrancy and destitution, does not operate as a bar to claim

maintenance. Such an agreement, being opposed to the public policy, does not

override the statutory ameliorative provisions, urged the learned counsel for the

Applicant.

15. Smt. Sarnaik, the learned counsel for the Respondent endevoured to join

the issue by canvassing a submission that if Applicant was desirous of claiming

maintenance, in spite of having relinquished the right to claim maintenance, the

proper remedy for the Applicant was to file a Petition under section 25 of the

Hindu Marriage Act, 1955. However, an application under section 125 of the

Code for award of maintenance was legally untenable, urged Smt. Sarnaik.

16. The learned Judge, Family Court was not persuaded to agree with the

submission on behalf of the Respondent that the agreement not to claim

maintenance, recorded by the learned Judge, Family Court while granting decree

of divorce by mutual consent, disentitled the Applicant from claiming

maintenance. The learned Judge was of the view that such an agreement was in

derogation of the statutory provision and was also opposed to public policy. The

approach adopted by the learned Judge, Family Court appears to be in

consonance with law.

17. The legal position in this context is no longer res-integra. Sub section (4) of

section 125 of the Code of Criminal Procedure, on the strength of which the

submission was sought to be advanced, on behalf of the Respondent, reads as

under:

“Section 125(4) in The Code Of Criminal Procedure,

1973 :

(4) No Wife shall be entitled to receive an

allowance 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.”

18. The import of aforesaid provision fell for consideration before the Supreme

Court in the case of Rohtash Singh vs Smt. Ramendri And Ors,1. The

Supreme Court, after analysing the text of aforesaid provision, held that all the

three circumstances contemplated by sub section (4) of section 125 of the Code,

namely, wife is living in adultery, wife has refused to live with her husband without

any sufficient reason and the parties are living separately by mutual consent presupposed

the existence of matrimonial relations. The provision would be

applicable where the marriage between the parties subsists and not where it has

come to an end.

1 (2000)3 SCC 180

19. In the aforesaid case, the Supreme Court considered the question whether

a wife against whom a decree of divorce has been passed on account of her

deserting the husband can claim maintenance allowance under section 125 of

Code of Criminal Procedure. The question was answered in the affirmative with

the following observations:

“8 ……………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 and 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."

10 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 125 Cr. P.C. If the

divorced wife is unable to maintain herself and if she has not

remarried, she will be entitled to Maintenance Allowance.”

(emphasis supplied)

20. The Supreme Court summarized the legal position to the effect that a

woman after divorce becomes destitute. If she cannot maintain herself and

remains unmarried, the man who was once her husband continues to be under a

duty and obligation to provide maintenance to her.

21. In view of the aforesaid exposition of law, the resistance to the claim

sought to be put forth by the Respondent on the premise that the Applicant is

residing separately by mutual consent is unworthy of acceptance.

22. The second limb of the submission based on the agreement not to claim

maintenance or relinquishment of the statutory right of maintenance is also

equally fragile. The object of the provisions contained in section 125 of the Code

cannot be lost sight of. Indisputably the provision is a measure of social justice

and its object is to prevent destitution and vagrancy. The statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up

an agreement not to claim maintenance. Such a clause in the agreement would

be void under section 23 of the Indian Contract Act, being opposed the public

policy. The fact that the said agreement was recorded in the decree of divorce

passed by the Family Court does not carry the matter any further. It is trite that

when a decree is passed on the basis of the consent terms, the consent terms

constitute nothing but contract with the imprimatur of the Court. If a term of the

contract is void, being opposed to the public policy, the fact that a consent decree

rests on it does not add any sanctity to such contract, nor the decree insulates it

from the consequence of being declared as void.

23. A profitable reference, in this context, can be made to a judgment of this

Court in the case of Ramchandra Laxman Kamble vs. Shobha Ramchandra

Kamble, 2019 All. M.R. Cri. 426, wherein this Court after adverting to a number

of pronouncements had enunciated the legal position to the effect that, there are

several rulings, which take the view that an agreement in which the wife gives up

or relinquishes her right to claim maintenance at any time in future, is opposed to

public policy and, therefore, such an agreement, even if voluntarily entered, is not

enforceable.

24. The aforesaid legal conspectus leads to an inference that the learned

Judge, Family Court was within his rights in negativing the challenge to the claim

of Applicant on the count that the Applicant had relinquished her right of

maintenance.

25. This propels me to the challenge to the impugned order on the aspects of

determination of refusal or neglect on the part of the Respondent and inability of

the Applicant to maintain herself. As regards the refusal or neglect on the part of

the Respondent to maintain the Applicant, it is not the case of the Respondent

that at any point of time, after the decree of divorce, the Respondent had

endevoured to make any provision for the livelihood of the Applicant. In the cross

examination the Respondent conceded in no uncertain terms that he had not

made any provision for the Applicant. The stand of the Respondent, on the other

hand, was that in view of the relinquishment of the claim of maintenance the

Respondent was not required in law to make a provision for the maintenance of

the Applicant. Thus the learned Judge, Family Court was justified in recording a

finding that the Respondent had refused or neglected to maintain the Applicant.

26. Smt. Sarnaik, the learned counsel for the Respondent-husband urged with

a degree of vehemence that the learned Judge, Family Court totally

misconstrued the evidence on record to arrive at a finding that the Applicant was

unable to maintain herself. In the face of the admissions during the course of the

cross examination that when the decree of divorce was passed the Applicant was

carrying on the business under the name and style of “Kalyani Beauty Parlor”,

and the documents which show that the said business was a running concern,

the finding that the Applicant was unable to maintain herself and had no income

at all could not have been recorded, urged Smt. Sarnaik.

27. The manner in which the Applicant fared in the cross examination assumes

significance. The Applicant conceded in unequivocal terms that when she had

filed Petition for divorce by mutual consent, she was running business of beauty

parlor from the flat where she was residing at Singhgad road. She conceded that

the said business was advertised on certain web-sites like healthfrom.com,

pindar.com and sulekha.com. She went on to admit that she had taken courses

of beautician and she runs the business under the name and style “Kalyani

Beauty Parlor and Training” though she claimed to have never ran a training

institute for conducting business of beauty parlor.

28. The aforesaid evidence is required to be appreciated in the light of the

attendant circumstances and the time lag. The decree of divorce by mutual

consent was passed in the year 2007. The application for award of maintenance

came to be preferred in the year 2016. The Applicant was indubitably running a

business under the name and style of “Kalyani Beauty Parlor and Training

Institute” when the decree of divorce was passed in the year 2007. The said fact

of the Applicant being a professional is also noted in the judgment and order

passed by the Family Court while granting the decree of divorce.

29. It would be contextually relevant to note that the application is

conspicuously silent about the fact that the Applicant used to run the business of

Kalyani Beauty Parlor. Assertions are made in the application that the Applicant is

jobless, she has no independent source of income and the father of the Applicant

has been supporting her financially. In this setting of the matter when the

Applicant was running a business when the decree of divorce was passed, it was

expected of the Applicant to make averments regarding the circumstances under

which the said business came to be closed and at what point of time. It would

have been a different matter had the Applicant approached the Court with a case

that the income from the said business was not sufficient to sustain her

livelihood.

30. The time lag of almost 9 years in approaching the Court with a claim that

the Applicant was unable to maintain herself assumes critical significance in this

context. Instead it was sought to be suggested to the Respondent during the

course of the cross examination that the Applicant had closed the business of

Kalyani Beauty Parlor prior to 8 years. There is neither an assertion in the

application nor oath in support thereof, put by the Applicant, to the effect that the

Applicant closed the business at a particular point of time and therefore she has

not been able to maintain herself since then.

31. The learned Judge, Family Court was of the view that the claim of the

Applicant that she had no source of income was reliable and trustworthy and

though the Applicant had the necessary qualification and experience, there was

nothing to show that the Applicant was running the business of beauty parlor, in

praesenti. In my considered opinion in the backdrop of the material on record, the

claim of the Applicant that she had no source of income ought to have been

accepted by the learned Judge, Family Court with a pinch of salt. The tenor of

the evidence and the material on the record suggests that the Applicant was

carrying on the said business of Kalyani Beauty Parlor and Training Institute to

sustain her livelihood.

32. However, the fact that the wife carries on some business and earns some