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2018 Supreme(Bom) 2001
IN THE HIGH COURT OF BOMBAY
M.S. Sonak, J.
Ramchandra Laxman Kamble - Appellant
Vs.
Shobha Ramchandra Kamble And Another - Respondents
Writ Petition No. 3439 of 2016
Decided On : 21-12-2018
Sandeep S. Koregave, Adv., Nagesh Chavan, Adv., Nikhil Pawar, Adv.
Headnote:
Constitution of India, 1950 - Article 227 - Criminal Procedure Code, 1973 - Sections 25, 125 and 127 - Civil Procedure Code, 1908 - Section 96 - Indian Penal Code, 1860 - Section 497 - Contract Act - Section 23 - Allegation Of Adultery - Challenge in this petition is to orders passed by judicial magistrate first class and additional sessions judge rejecting petitioners contention that respondents application seeking maintenance be dismissed or be not proceeded with since respondent had specifically waived her right to claim for any maintenance - Learned counsel for petitioner submits that proceedings petitioner and respondent filed a consent in which they not only agreed to dissolve from marriage but also agreed not to claim any maintenance from each other - Based upon such civil judge senior division made a decree for divorce by incorporating agreement arrived at between parties - Points out that respondent wife made false allegations that her consent was obtained by fraud and on such basis appealed to district court to set aside consent decree made by civil judge senior division - Held, There is no reason to interfere with views taken by two courts in present matter - Learned counsel for petitioner also contended that respondent is not entitled to any maintenance - He submits that one person has already been convicted for having committed adultery with respondent - He however submits that this ground was not available to petitioner earlier and had only been subsequently raised - He also admits that such a ground has not been considered by two courts in impugned orders - Learned counsel for respondent submits that to best of his knowledge an appeal is pending against conviction of such other person since allegation of adultery was false - In any case submits that whereas contemplates even a single act of adultery contemplates a situation where wife is living in adultery - He submits that there is a clear distinction between commission of a single act of adultery and of living in adultery - He submits that in absence of any evidence whatsoever that respondent is living in adultery her claim for maintenance can never be defeated - Since impugned orders do not decide issue of adultery or living in adultery there is no reason for this court at this stage to go into this issue - Now that application of respondent is held as maintainable it is open to both parties to raise such issue or to lead evidence on such issue and based upon same there is no doubt that magistrate will dispose of application in accordance with law and on its own merits - It is therefore clarified that this issue is left open for determination by judicial magistrate first class - Petition Is Dismissed.
M.S. Sonak, J.
Heard Mr. Sandeep Koregave for the Petitioner husband and Mr. Nagesh Chavan for Respondent No.1.
2. The challenge in this petition is to the orders dated 13 October 2011 and 31 January 2013 passed by the Judicial Magistrate, First Class and Additional Sessions Judge rejecting the Petitioner's contention that the Respondent's application seeking maintenance under Section 125 of Cr.P.C. be dismissed or be not proceeded with, since, the Respondent had specifically waived her right to claim for any maintenance.
3. Mr. Koregave, learned Counsel for the Petitioner, submits that in lokadalat proceedings, the Petitioner and Respondent No.1 filed a consent pursis, in which they not only agreed to dissolve from marriage, but also agreed not to claim any maintenance from each other. Based upon such pursis, Civil Judge, Senior Division of Sangli made a decree for divorce by incorporating agreement arrived at between the parties in the pursis submitted before the lokadalat.
4. Mr. Koregave points out that the Respondentwife made false allegations that her consent was obtained by fraud, and on such basis, appealed to the District Court to set aside the consent decree made by Civil Judge, Senior Division at Sangli. Such appeal was dismissed as not maintainable in view of the provisions in Section 96(3) of the Civil Procedure Code. Against such dismissal, the Respondent instituted Writ Petition No.1931 of 2012, which was also dismissed by this Court vide order dated 15 October 2012. However, this Court, granted liberty to the Respondent to take out proceedings before the Civil Judge, Senior Division at Sangli to seek recall of the consent decree.
5. Mr. Koregave submits that he is not sure whether any such proceedings have been taken out by the Respondent. However, he submits that as yet the consent decree stands and has not been set aside. He, therefore, submits that in terms of the agreement recorded in the consent decree, the Respondent, having waived her right to receive maintenance, cannot now maintain an application under Section 125 of Cr.P.C. He submits that Respondent's application under Section 125 of Cr.P.C. was, therefore, required to be dismissed, or, in any case, stayed until Civil Judge, Senior Division at Sangli decides the issues as to whether the consent decree is liable to be recalled or set aside.
6. Mr. Chavan, learned Counsel for Respondent No.1wife, submits that a consent decree in the present case, was a result of fraud, and, therefore, the Respondent has already taken out Miscellaneous Application No.229 of 2012 before the Civil Judge, Senior Division at Sangli for recall of the same or at least recall of the term relating to alleged waiver of the right to receive maintenance. Such application has been taken out in pursuance of liberty granted by this Court in its order dated 15 October 2012 passed in Writ Petition No.1931 of 2012.
7. Mr. Chavan submits that irrespective of pending Miscellaneous Application No.229 of 2012, and the so called consent decree, any agreement for waiver to receive maintenance is void, since, it is opposed to public policy. He submits that there can be no agreement in derogation of the provisions of Section 125 of Cr.P.C., since, such provisions have been designed as a matter of public policy to protect against destitution and vagrancy.
8. Mr. Chavan relies upon several decisions to point out that even assuming that right to claim maintenance was voluntarily given up by the wife, that by itself does not bar the wife from seeking maintenance, provided the circumstances prescribed in Section 125 of Cr.P.C. stands fulfilled. For these reasons, Mr. Chavan submits that there is absolutely no error in the impugned orders and this petition may, therefore, be dismissed.
9. Rival contentions now fall for determination.
10. In the present case, it does appear that a joint pursis was filed by the Petitioner and Respondent No.1 before the lokadalat to dissolve their marriage. In the pursi
