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Cri.Revn.Appln.No.122/2003

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO.122 OF 2003

Vishnu s/o Ganpati Subugade

Age: 34 Yrs., occu. Agril.

At and post Walwad, Tq.Bhoom,

District Osmanabad.

- PETITIONER

(Orig. Respondent)

VERSUS

Sow.Adhika w/o Vishnu Subugade

Age: 28 Yrs., occu. Household,

R/o Buki Tq. Paranda,

District Osmanabad.

- RESPONDENT

(orig.Applicant)

*****

Mr.S.Y.Mahajan,Advocate for Petitioner;

Mr.S.M.Kulkarni,Advocate for Respondent.

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CORAM :

K.U.CHANDIWAL, J.

DATE OF RESERVING JUDGMENT :

19^th MARCH, 2013.

DATE OF PRONOUNCING JUDGMENT:

3^rd APRIL, 2013.

JUDGMENT:

1)

Heard extensively. Rule was issued on 3^rd

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

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Cri.Revn.Appln.No.122/2003

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 8^th 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.10/1995 was decreed

on dated 11^th 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, -

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Cri.Revn.Appln.No.122/2003

Sr.No.

Citations

1)

1989 Cri.L.J. 211

Shrawan Sakharam Ubale Vs. Sau Durga Shrawan

Ubale.

2)

2003 (4) Mh.L.J.23

Vithal Hiraji Jadhav Vs. Harnabai Vithal Jadha

3)

2005 (1) Mh.L.J. 348

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, 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 Babul