Thursday 29 August 2013

Wife giving up right of maintenance in declaration suit is not legal

 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

No comments:

Post a Comment