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.1 0/1995 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 (Exhibit-9) 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. Citations

1) 1989 CrLL.J. 211 Shrawan Sakharam Ubale Vs. Sau Durga Shrawan

Ubale.

2) 2003 (4) Mh.L.J.23 : 12003 ALL MR (Cri) 10941 Vithal Hiraji Jadhav Vs.

Harnabai Vithal Jadha

3) 2005 (1) Mh.L.J. 348: [2005 ALL MR (Cri) 314] 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: [2009 ALLSCR 1804], will prevail, as it relates to effect of divorce by mutual consent. It has been observed by the three Judges 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: [1996(4) ALL MR 497], 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 an 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 r