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2023 Supreme(Online)(Bom) 24674
BOMBAY HIGH COURT
K. L. WADANE, J
Rameshwar s/o Sandu Kachkure – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL WRIT PETITION NO. 295 OF 2017
For the Appellants/Petitioners: Mr. R.R. Mantri
For the Respondents: Mr. B.A. Shinde, Mr. P.G. Patil, h/f Mr. A.B. Gaikwad
A wife is entitled to maintenance despite claims of mutual consent separation unless a valid divorce is established, as per Section 125(4) of the Criminal Procedure Code.
Headnote:(A) Criminal Procedure Code, 1973 - Sections 125(4) - Maintenance application filed by wife after alleged divorce - Claim denied by husband citing mutual consent of separation - Requirement of legally recognized divorce emphasized in determining entitlement to maintenance - Court rejected husband's contention, affirming that maintenance is necessary to prevent destitution. (Paras 9, 10, 22, 24)
(B) Mutual Consent - The court found insufficient evidence to prove separation by mutual consent, as the claimed divorce was disputed, invalidating the husband's defence for maintenance claim.
Facts of the case:
The petitioner claimed that the respondent relinquished her right to maintenance post-divorce, while the respondent contested the validity of the divorce and claimed maintenance under Section 125 of the Code.
Findings of Court:
The court ruled in favor of the respondent, highlighting the necessity of maintenance to avoid destitution and that the alleged divorce deed was invalid in nature. Maintenance granted at Rs. 1500/month.
Issues: The main issue revolved around the validity of the divorce deed and the establishment of mutual consent for separation.
Ratio Decidendi: The court reiterated that without a legally recognized divorce, the wife is entitled to maintenance irrespective of any alleged mutual consent to live separately. The husband failed to prove his claims, leading to the affirmation of the maintenance order for the wife.
Result: Writ Petition is dismissed.
| Table of Content |
|---|
| 1. addressing maintenance due to alleged divorce and mutual consent. (Para 2 , 4) |
| 2. examining the respondent's grounds for claiming maintenance despite divorce. (Para 3 , 12 , 18 , 20) |
| 3. petitioner's argument regarding relinquishment of maintenance rights. (Para 9 , 10 , 11) |
| 4. court's determination on maintenance entitlement contrary to husband's claims. (Para 22 , 23) |
JUDGMENT
1. Rule. Rule made returnable forthwith. By consent of the learned counsel for both parties, this petition is taken up for final hearing.
2. The respondent No. 2 filed an application for maintenance under the provisions of section 125 of the Code of Criminal Procedure, bearing Criminal Misc. Application No. 38/2015 before Judicial Magistrate, First Class, Badnapur, District Jalana.
3. It is contended that, respondent No. 2 married with petitioner on 23.01.1993. Respondent No. 2 residing happily with the petitioner for about two months, however, thereafter the petitioner started illtreatment. Therefore, she started to reside with her parents. It is further contended that, the petitioner has not made provision of maintenance of respondent No. 2. Furthermore, the petitioner has performed second marriage.
4. The petitioner appeared in the Trial Court and submitted his say and has admitted the marriage with respondent No. 2. However, he has denied almost all remaining contents of the petition. It is the specific case of the petitioner that there was divorce between him and respondent No. 2 on 13.08.2004 and the respondent No. 2 has relinquished her right of maintenance and since the date of divorce i.e. 13.08.2004, respondent No. 2 is residing at her parents house on her own will. So according to petitioner the respondent No.2 is not entitled to claim maintenance in view of the divorce and the fact that the parties are residing separately by mutual consent from the date of divorce.
5. Respondent No. 2 filed her oral evidence by way of affidavit (Exh.11). In addition to that she examined her cousin brother at Exh. 19. As against this, the petitioner did not enter into the witness box, however, examined one witness Sudhakar Bodhgire to prove the divorce deed (Exh. 14).
6. Besides the oral evidence of the parties, reliance is placed by the petitioner on documents i.e. divorce-deed (Exh. 14), 7x12 extracts (Exh. 15 & 16), copy of sale-deed (Exh. 17), registration certificate of two-wheeler vehicle (Exh. 18), to contend that the respondent No. 2 is having sufficient means to maintain herself.
7. Considering the evidence on record and after hearing both the sides, learned Judicial Magistrate First Class, Badnapur, has allowed the application on 06.08.2016 and awarded amount of maintenance at the rate of Rs. 1500/- per month from the date of application i.e. from 11.03.2015 together with costs of Rs. 2000/-. That order was assailed before the learned Sessions Judge, Jalna by filing Criminal Revision Application No.113/2016. The same was rejected after hearing both the sides.
8. I have heard the arguments of Mr. Mantri, learned counsel for petitioner and Mr. Patil, h/f Mr. Gaikwad, learned counsel for respondent No. 2.
9. Mr. Mantri, learned counsel, during the course of arguments submitted that after the marriage, the respondent No. 2 resided with the petitioner for a few months and thereafter she left the house of the petitioner and she was started to reside at her parents house and she is looking after her parents. Mr. Mantri, learned counsel, further argued that there was divorce between the parties and its deed was registered before the Sub-Registrar. At the time of execution of the divorce-deed the respondent No. 2 relinquished her right of maintenance. Therefore, now the respondent No. 2 is not entitled to claim any maintenance. He further submitted that since the petitioner and the respondent No. 2 are residing separately, with mutual consent, since the date of the divorce, therefore, the respondent No. 2 is not entitled to claim maintenance in view of
