Sunday, 5 July 2015

Whether wife can be denied maintenance on the ground of customary divorce?


It   is   to   be   noted   in   the   present   case   that   the 
parties   are   governed   by   the   Hindu   Law.     Both   the   Courts 
below have recorded specific and clear­cut finding that the 
petitioner/husband could not establish the custom prevailing 
in their caste, by which customary divorce can be given.   In 
absence of any custom, any document purported to be the 
divorce deed, has no value in the eye of law.  In that view of 
the   matter,   the   submission   of   the   learned   counsel   for   the 
petitioner   that   in   view   of   the   divorce   deed   [Exh.29],   the 
application   itself   is   not   maintainable   can   not   be   accepted. 
Further,   the   learned   revisional   Court   has   rightly   observed 

that   the   proceedings   u/s   125   of   the   Code   of   Criminal 
Procedure   were   filed   on   22/09/1999,   whereas   the   divorce 
deed is executed on 26/09/1999.   The learned trial Court, in 
the light of the admission given by the husband that he got 
the   divorce   deed   executed   because   he   wanted   to   perform 
second   marriage,   rightly   recorded   finding   that   the   divorce 
deed got executed by the husband from the wife, can not be 

relied upon.     Further, once the husband failed to point out 
the  custom, the  husband is  dis­entitled to  take  any benefit 
from such customary divorce deed.                                                                        
      
CRIMINAL WRIT PETITION NO. 528 OF 2002
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY   
                                BENCH AT AURANGABAD
Gangadhar S/o Manika Huge


V E R S U S

Rekhabai W/o Gangadhar Huge

           
    
        
CORAM : V.M.DESHPANDE, J.
                                
        
  
DATE OF JUDGMENT : 9th FEBRUARY, 2015   
Citation;2015 ALLMR(CRI)2243

Heard  Mr.   P.G.Godhamgaonkar,   the   learned 
1.
counsel  for the  Petitioner.    None  for the  respondent No. 1 
though served. 
2.
The parties will be referred to as husband and 

wife for the convenience.
This Writ Petition is filed by husband against the 
3.
order   dated   28/06/2002   passed   by   the   Judicial   Magistrate 
First   Class,   Gangakhed   in   Criminal   Misc.   Application   No. 
25/1999,   by   which   the   learned   Magistrate   directed   him   to 
pay maintenance @ ` 300/­ per month to the wife from the 
date of application together with Judgment and Order dated 
16/11/2002   passed   by   the   learned   2nd  Additional   Sessions 
Judge,   Parbhani  in   Criminal   Revision   No.   84   of   2002, 
dismissing his Revision. 
4.
The wife filed proceedings u/s 125 of the Code 
of  Criminal   Procedure  against the  husband.      By filing  the 
said   proceedings,   the   wife   claimed   maintenance   from   the 
husband.

  It is stated  in  the  application  u/s   125  of  the 
5.
Code of Criminal Procedure that the wife is legally married 
with the husband and their marriage was solemnized as per 
the Hindu rites.   Though she was maintained properly for a 
period of 2 years, subsequently   the husband started giving 
ill­treatment  to  her  in  order to fulfill his illegal demand of 
6.

chain, etc.  
` 25,000/­   [Rupees   Twenty   Five   Thousand   only],   golden 
The wife was assaulted by the husband and she 
was kept without food.     The husband gave beating to the 
wife   and   drove   her   away   from   the   matrimonial   house. 
Thereafter,   the   wife   tried   to   make   her   entry   again   in   the 
matrimonial house with the  help of some common friends. 
However,   the   said   attempt   of   the   wife   also   proved   to   be 
futile.  
7.
 It was pointed out in her application by the wife 
that the husband is agriculturist having 18 Acres of land, out 
of which 5 Acres is irrigated land and he is taking cash crops 
like   Sugarcane   and   Banana.     Besides   that,   the   husband   is 
having 15 buffalows  and used to   carry     milk      business. 

One Lakh Twenty Five Thousand only] per annum.  
From   the   same, he   earns   about   ` 1,25,000/­ [Rupees 
8.
The application of maintenance of the wife was 
contested   by   the   husband.     He   admitted   the   marriage. 
However, he denied the demand and illtreatment.     It was 
further   pointed   out   in   the   Written   Statement   that   on 

26/03/1999, mutual divorce  took place amongst them  and 
divorce   deed   was   executed.   That   time   he   has   paid 
` 1,10,000/­ [Rupees One Lakh Ten Thousand only] to the 
wife and she has relinquished her claim.  
9.
The   learned   Magistrate,   after   considering   the 
pleadings   and   the   evidence   on   record,   allowed   the 
application   filed   by   the   wife   vide   Judgment   dated 
28/06/2002 and thereby directed that the wife is entitled to 
receive   maintenance   @  ` 300/­   [Rupees   Three   Hundred 
only] per month from the husband.  
10.
The   husband   was   dis­satisfied   with   the   said 
verdict   and, therefore, he filed Revision in the Court of the 
Sessions Judge at Parbhani.   The learned Sessions Judge on 

16/11/2002 dismissed the Revision.  
Mr. Godhamgaonkar, the learned counsel for the 
11.
petitioner   submitted   before   this   Court   that   in   view   of   the 
divorce deed dated 26/09/1999, which was duly proved and 
which is at Exh. 29 on record and the proceedings filed on 
behalf of the wife were not maintainable.  In order to buttress 

his submission, he relied upon the reported decision of this 
Court in the case of Shrawan Sakharam Ubhale  Vs.  Durga 
Shrawan Ubale and others, 1990(1) Mh.L.J. 418.
12.
It   is   to   be   noted   in   the   present   case   that   the 
parties   are   governed   by   the   Hindu   Law.     Both   the   Courts 
below have recorded specific and clear­cut finding that the 
petitioner/husband could not establish the custom prevailing 
in their caste, by which customary divorce can be given.   In 
absence of any custom, any document purported to be the 
divorce deed, has no value in the eye of law.  In that view of 
the   matter,   the   submission   of   the   learned   counsel   for   the 
petitioner   that   in   view   of   the   divorce   deed   [Exh.29],   the 
application   itself   is   not   maintainable   can   not   be   accepted. 
Further,   the   learned   revisional   Court   has   rightly   observed 

that   the   proceedings   u/s   125   of   the   Code   of   Criminal 
Procedure   were   filed   on   22/09/1999,   whereas   the   divorce 
deed is executed on 26/09/1999.   The learned trial Court, in 
the light of the admission given by the husband that he got 
the   divorce   deed   executed   because   he   wanted   to   perform 
second   marriage,   rightly   recorded   finding   that   the   divorce 
deed got executed by the husband from the wife, can not be 

relied upon.     Further, once the husband failed to point out 
the  custom, the  husband is  dis­entitled to  take  any benefit 
from such customary divorce deed.   
13.
In that view of the  matter, both the  impugned 
orders do not suffer from any perversity.  Hence, the present 
Writ Petition is dismissed.   Rule discharged.  
     
        

     
     [V.M.DESHPANDE, J.]

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