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IN THE HIGH COURT OF BOMBAY
TEJASWINI, ANANDRAO TAYADE
Versus
CHANDRAKANT KISANRAO SHIRSAT
Decided on 25/2/2005
Criminal Procedure Code, 1973 - Section 125 - Claim of maintenance by wife. - Since earning of husband is Rs. 8,000/- p.m. hence wife’s claim for maintenance @ 1/8th of salary of her husband is fair and reasonable.
Criminal Procedure Code, 1973 - Section 125(4) - Claim of maintenance under Section 125(4) of Cr PC. - Since customary divorce deed is illegal hence wife is entitled to claim maintenance under Section 125(4) of Cr PC. - Where the parties executed a divorce deed/consent deed containing a covenant that the wife had given up her claim for past and future maintenance.
Held, that the deed of divorce under which the wife is said to have given up her claim for maintenance, cannot be enforced in law because the said customary divorce deed is illegal and has no effect on the relinquishment of maintenance thereunder which is of no consequence. It is not possible to hold that the parties were living separate by mutual consent and the wife has lost her right to claim maintenance under sub-section (4) of Section 125 of the Criminal Procedure Code. The marital tie between the parties cannot be put to an end by execution of the customary divorce deed and the parties can avail the remedies under the civil law if at all they want to compromise the matter by mutual consent. It is obvious that unless there is a decree of divorce passed by the Competent Court under Section 13-A or 13-B of the Hindu Marriage Act, 1955, it is not possible to accept that the marriage can be dissolved by entering into the consent deed and/or divorce deed. The Additional Sessions Judge has committed an error in reaching to conclusion that since the wife is living separate by mutual consent and that since she had obtained the divorce and relinquished her claim for past and future maintenance, she is not entitled to claim any maintenance under Section 125(4) of the Criminal Procedure Code. The impugned judgment and order passed by the Additional Sessions Judge rejecting the claim of maintenance to the wife is liable to be quashed and the order that has been passed by the Magistrate deserves to be restored. 2001 (1) Mh LJ 202 - Relied on.
Criminal Procedure Code, 1973 - Section 125(4) - Maintenance - Entitlement - Application by wife for self and son - Execution of customary divorce deed and consent deed by wife - Relinquishing her right to claim past and future maintenance - Claim rejected by Sessions Court - Challenged. - Held, decree of divorce cannot be dissolved by entering into consent deed and/or divorce deed involvement of Court is necessary Customary divorce deed is illegal and the material tie cannot be put to an end by execution of customary divorce deed. Wife shall be entitled to claim maintenance. Order impugned quashed. 2001 (5) Bom CR 221 - Relied on. 1996 (Supp.) Bom CR (SC) 237; 2001 (Supp. 2) Bom CR (NB) 583 - Referred to. 2003 Bom CR (Cri) 1122; 2005 All MR (Cri) 314 not applicable.
Criminal Procedure Code, 1973 - Section 125(4) - Entitlement to maintenance under Section 125(4) of Cr PC. - Wife obtaining decree of divorce not entitled to claim maintenance under Section 125(4) of Cr PC. - Held, Section 125(4) does not apply to the case of divorced woman or who has obtained decree of divorce. 1996 (Supp.) Bom CR (SC) 237 - Referred to.
Maintenance - Entitlement - Application by wife for herself and son - Execution of customary divorce deed and consent deed by wife - Relinquishing her right to claim past and future maintenance - Claim rejected by Sessions Court - Challenged - Held, in absence of decree of divorce by competent Court marriage cannot be dissolved. Customary divorce deed is illegal. Marital tie cannot be put to end by execution of customary divorce deed. Wife entitled to claim maintenance. Impugned order quashed. - 2001 (5) Bom CR 221 - relied on; 1996 (Supp) Bom CR (SC) 237; 2001 (Supp 2) Bom CR (NB) 583 - Referred; 2003 Bom CR (Cri) 1122; 2005 All MR (Cri) 314 not applicable.
Maintenance - Reasonable amount - Petitioner wife granted maintenance of Rs. 500 p.m. for herself and her son - Revision seeking enhancement - Respondent husband drawing salary of Rs. 8,000 p.m. - No one dependent on husband. - Held, wife would not be in a position to maintain standard of living and to meet both ends and to educate her son within meager amount of Rs. 500 p.m. Wife claiming maintenance Rs. 1000 p.m. which is 1/8th of salary is most fair and reasonable and Sessions Judge ought to have allowed revision.
Maintenance - To wife - Applicability. - Held, Section 125 (4) not applicable to case of woman divorced or obtained decree of divorce. 1996 (supp) Bom CR (SC) 237 - Referred.
( 1 ) THIS petition takes an exception to the common judgment and order dated 10-6-2002 passed by the learned Additional Sessions judge in Criminal Revision No. 53-A/2000 filed by the petitioner-wife claiming enhancement in maintenance allowance under section 125 of the Code of criminal Procedure and Criminal Revision No. 60/2000 filed by the respondent- husband for quashing entire order of maintenance, whereby the learned additional Sessions Judge dismissed the criminal revision filed by the wife and allowed the criminal revision filed by the husband and set aside the order passed by the learned Judicial Magistrate, First Class on 30-11-1999 in Misc. Criminal case No. 507/98 directing the husband to pay maintenance @ Rs. 500/- per month to wife. However, so far as the order regarding grant of maintenance to petitioner No. 2 Rahul, who is the son of petitioner No. 1 is concerned, it has been confirmed by the learned Additional Sessions Judge.
( 2 ) BRIEF facts are required to be stated as under : the petitioners had filed Misc. Criminal Case No. 507/98 under section 125, criminal Procedure Code for grant of maintenance on the allegations that the respondent-husband having sufficient means, refused and neglected to maintain them who were unable to maintain themselves. The learned Magistrate on consideration of the evidence adduced by the parties, had granted maintenance @ rs, 500/- per month each to the wife and the son from the date of the application by his order dated 30-11-1999. Being aggrieved by this order, the petitioner-wife had filed criminal revision No. 53-A/2000 for enhancement of the maintenance allowance and the respondent-husband had also filed criminal revision No. 60/2000 for quashing the entire order of maintenance on the ground that the wife had executed the customary divorce deed as well as the consent deed (Exh. 23) on 25-11-1995 and relinquished her right to claim past and future maintenance before the learned Additional Sessions Judge. The learned Additional Sessions judge by his common order dated 10-6-2002 dismissed the revision filed by the wife for enhancement of maintenance allowance and allowed the criminal revision filed by the husband and quashed and set aside the order granting maintenance to the petitioner No. 1-wife. This order is under challenge in this petition.
( 3 ) MR. C. A. Joshi, the learned counsel for the petitioners-wife and son contended that the customary deed of divorce under which the wife is said to have given up her claim for maintenance cannot be enforceable in law as the custom has not acquired any force of law nor it is backed by any custom and in absence of any proof of the custom or that the deed of divorce is legally valid, the said alleged customary divorce deed has no evidentiary value in the eyes of law and, therefore, the relinquishment which is said to have been made by the wife for the claim of past and future maintenance is invalid. He contended that though in the consent deed (Exh. 23) it has been mentioned that the wife has given up her claim for past and future maintenance, nothing has been mentioned as to how much amount in lump sum was paid to her in the said consent deed. He contended that the husband claims to have paid the amount of Rs, 40,000/- in lump sum towards the past and future maintenance of the wife, but this fact has not been duly established. He contended that the husband had filed the petition claiming divorce under section 13 of the Hindu Marriage Act, 1955 which was registered as Hindu Marriage Petition No. 44/91 on the ground that the wife was suffering from mental disorder and this petition was dismissed on 21-6-1993.
( 4 ) HE contended that the husband is working as a Clerk in the State government, i. e. in the department of Employment Exchange and getting monthly salary of about Rs. 5,000/-, he has to maintain his second wife and son only and the maintenance awarded @ Rs. 500/- per month is very meagre amount which needs to be enha
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