The pendency of divorce proceedings does not bar the wife's right to maintenance under Section 125 of the Criminal Procedure Code.

JUDGMENT - Lodha R.M., J.:—By this application filed by applicant Gomaji Ghanshyam Mohadikar under section 482 of the Criminal Procedure Code, it is prayed that the proceedings initiated by non-applicant No. 1 Yashoda under section 125, Criminal Procedure Code before the Judicial Magistrate, First Class, Tumsar and registered Misc. Criminal Case No. 75 of 1995 be quashed and set aside. This prayer is made by the applicant on the ground that prior to the initiation of the proceeding under section 125, Criminal Procedure Code, the applicant has already initiated proceedings for divorce under section 13 of the Hindu Marriage Act, 1955, in the Court of the Civil Judge, Senior Division, Nagpur and the application under section 125, Criminal Procedure Code has been filed by the non-applicant only to harass the applicant.

2. The applicant Gomaji Ghanshyam Mohadikar (for short, the 'husband') married the non-applicant No. 1 Yashoda (for short, the 'wife') on 20-6-1991 and the marriage between the parties took place at Sihora in Bhandara district. After sometime, the matrimonial dispute arose between the parties and without going into the details of the matrimonial dispute, suffice it to observe that the wife started living separately from the husband on 11-8-1993 and according to the husband, on that date dispute arose between husband and wife, since the husband suspected that wife had illicit relations with one Shankar Fakira Ninawe. On 6-6-1994 the husband filed a petition seeking a decree of divorce and dissolution of marriage under section 13(1)(i) of the Hindu Marriage Act in the Court of the 3rd Jt. Civil Judge, Senior Division, Nagpur and the said Hindu Marriage Petition has been registered as Hindu Marriage Petition No. 128 of 1994 and pending in the said Court. On 8-8-1994, admittedly, the wife made an application under section 125, Criminal Procedure Code seeking maintenance from the husband. The grievance of the husband is that parallel criminal proceedings filed by the wife under section 125, Criminal Procedure Code is an abuse of the process of the Court on the face of the pendency of Hindu Marriage Petition initiated by the husband seeking decree of divorce and dissolution of marriage and according to the husband, if at all, wife needs maintenance, she can seek an appropriate order from the Civil Court where the proceedings for divorce and dissolution of marriage are pending.

3. Mr. Sagdeo, the learned Counsel for husband in support of his contentions relied upon the decision of the Madras High Court in (G. Ramanathan v. Mrs. Revathy)1, 1989 Cri.L.J. 2037 and the judgment of this Court in (Ravindra Karmarkar v. Shaila)2, 1991 Mh.L.J. 1312. On the other hand, Mr. Quazi, the learned Counsel for wife submitted that merely because husband has filed Hindu Marriage Petition seeking decree of divorce and dissolution of marriage, the right of wife for maintenance under section 125, Criminal Procedure Code is not taken away and there is no bar that during the pendency of the marriage petition the wife cannot claim maintenance from the Criminal Court under section 125, Criminal Procedure Code. Mr. Quazi also submits that till date the Civil Court has not granted any maintenance to the wife and, therefore, decisions relied upon by the learned Counsel for husband have no application in the facts and circumstances of the case. Mr. Quazi, the learned Counsel for wife relied upon the decision of the Apex Court in (Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and ors.)3, A.I.R. 1978 S.C. 1807; (Tarabai v. Shamsingh and anr.)4, 1991 Mh.L.J. 521 and (Vishwanath v. Nirmala)5, 1992, Cri.L.J. 1262.

4. On having given my thoughtful consideration to the contentions raised by learned Counsel for parties, in my view, the present petition filed by the husband under section 482, Criminal Procedure Code seeking quashing of criminal proceedings filed by the wife under section 125, Criminal Procedure Code and pending in the Court of the Judicia

Click Here to Read the rest of this document