A wife is entitled to maintenance under Section 125 of the Criminal Procedure Code even after a divorce, unless she has obtained the divorce and voluntarily surrendered her right to maintenance.

JUDGMENT :

M.B. Shah, J.

The petitioner wife has filed Criminal Miscellaneous Application No. 18 of 1980 under section 125 of the Criminal Procedure Code before the Metropolitan Magistrate, Ahmedabad for maintenance. It was her case that she married with opponent No. 1 on 22nd May, 1972 at village Biliya, Taluka Vijapur. District Mehsana ; she was physically and mentally ill-treated by opponent No. 1 and his family members ; as she was not in a position to bear any child and opponent No. 1 along with his family members pressurised her for giving divorce ; on 21st March, 1980 in the morning opponent No. 1 and his mother near her ; she was thereafter brought to the Court and her signatures were taken on three or four blank papers : at about 4.00 p.m. the uncle of opponent No. 1 dropped her near her parent's house and she was informed that she has been divorced. It is her say that immediately her father sent a telegram to opponent No. 1 contending that the petitioner had not agreed to divorce and under coercion her signatures were taken on blank papers. She further alleged that she had complained to Social Security Wing of the Police Department.

2. As opponent No. 1 refused to keep the petitioner with him she had filed the aforesaid application for maintenance. It is her say that opponent No. 1 was earning salary of Rs. 700/- and, therefore, she prayed that the maintenance at the rate of Rs. 300/- be awarded.

3. The Metropolitan Magistrate (Court No. 13), Ahmedabad by his judgment and order dated 30th October, 1980, allowed the said application and awarded maintenance at the rate of Rs. 150/- per month from 27th March, 1980. The learned Metropolitan Magistrate held that divorce deed was executed willingly and voluntarily, but he held that it cannot be believed that the petitioner had abandoned her fight to maintenance.

4. Against the said judgment and order opponent No. 1 filed Criminal Revision Application No. 326 of 1980 before the City Sessions Judge, Ahmedabad. The said matter was heard by the Additional City Sessions Judge (Court No. 2). The Court held as under :

"I am not inclined to accept the contentions of the husband that the respondent wife had initiated the talk about the divorce, that she had taken the husband to the court, that she had taken the stamp papers, that she had engaged the advocate and fixed the fees, that she had dictated the divorce deed and that she had read it and approved it but this is not the proper forum and proper stage to decide upon these matters. This is summary proceedings and unless the divorce deed has been challenged and set aside by proper procedure. I cannot over look that deed in these proceedings under section 125 of the Criminal Procedure Code, 1973."

The learned Judge held that because of the divorce deed which was on record the petitioner was not entitled to have maintenance under section 127(3) (c) of the Criminal Procedure Code.

5. Being aggrieved and dissatisfied by the judgment and order of the learned Additional Sessions Judge, the petitioner-wife has filed revision application.

6. The learned advocate for the petitioner vehemently submitted that once the learned Additional City Sessions Judge arrived at a conclusion that he was not inclined to accept the contention of the husband that the wife and initiated the talk about divorce and that she had taken paper, engaged the advocate, fixed the fees, dictated the divorce deed and had read it and approved it, it cannot be said that the said divorce deed can be relied upon for holding that under section 127(3) (c) the petitioner was not entitled to have maintenance because she had voluntarily surrendered the right to maintenance.

7. Under section 127(3) (c) of the Code the Magistrate is empowered to cancel the order of maintenance passed under section 125 if he is satisfied (1) that the woman had obtained divorce from her husband and (2) she had voluntarily surrendered her right to maintenance after her divorce. In the present case the allege