Bombay High Court
Prabhavati Nivrutti Patil (Sou.) vs Nivrutti Kashinath Patil (Shri) And ... on 10 July, 2000
Equivalent citations: 2001(5)BOMCR221, 2001CRILJ1989, II(2001)DMC152
Author: Pratibha Upasani
Bench: Pratibha Upasani
JUDGMENT Pratibha Upasani, J.
1. This Criminal Revision Application is filed by the petitioner/wife, being aggrieved by the judgment and order dated 9th June, 1994, passed by the Sessions Judge, Raigad, Alibag, in Criminal Revision Application No. 142 of 1993. By the impugned judgment and order, the learned Sessions Judge, Alibag, allowed Criminal Revision Application preferred by the original opponent/husband-Nivrutti Kashinath Patil and set aside the order passed by the Judicial Magistrate, First Class, Pen, who by his order dated 8th October, 1993, had directed the husband to pay maintenance amount of Rs. 200/- per month, from the date of the application, to the petitioner/wife and Rs. 100/- by way of cost to her.
2. Few facts, which are required to be stated, are as follows :
Petitioner-Prabhavati and respondent No. 1/Nivruti were married as per Hindu rites in the year 1987. After the marriage, Prabhavati went to reside with her husband at the Matrimonial house and stayed there for 31/2 years. Thereafter, she started getting ill-treatment at the hands of her husband and ultimately in December, 1990, the husband drove her out. Again on 25th December, 1990, the wife came back to the husband, but she was refused to be admitted in the house. Again attempt was made by her to come and reside with the husband, but in vain. On 10th January, 1991, wife-Prabhavati learnt that her mother-in-law was not well and, therefore, she went to the house of her husband along with her mother. She was admitted in the house. At this time, her signatures were obtained by the husband on the blank stamp papers and then she was driven out of the house.
3. As per the complainant-wife's story, on 23rd May, 1991, a notice was issued to the husband either to allow her to stay with him or to pay maintenance. As there was no response from the husband, application for maintenance under section 125 of the Code of Criminal Procedure, 1973, came to be filed, being Application No. 38 of 1991 in the Court of the Judicial Magistrate, First Class, Pen.
4. The said application was opposed by the husband by submitting his written statement. His contention was that there was divorce between the parties on the basis of customary private divorce deed. According to him, in the said customary divorce deed, wife had given up her right for future maintenance. He also denied all the allegations made regarding ill-treatment and desertion.
5. The learned Judicial Magistrate, First Class, Pen, after recording evidence and after hearing both the sides came to the conclusion that the wife-Prabhavati was entitled to maintenance at rate of Rs. 200/- per month, that the petitioner had proved that she was neglected and subjected to ill-treatment by her husband, that she was unable to maintain herself and the husband was in a position to pay the maintenance to her, who has neglected her. He, therefore, allowed the wife's application and granted Rs. 200/- by way of interim maintenance to the wife from the date of the application and also awarded cost of Rs. 100/- to the petitioner-wife.
6. Being aggrieved by the said judgment and Order dated 6th October, 1993, passed by the Judicial Magistrate, First Class, Pen, the husband approached the Sessions Court by way of preferring Criminal Revision Application No. 142 of 1993. The learned Sessions Judge, Alibag, by his impugned judgment and order dated 9th June, 1994, after hearing both the sides, allowed the said criminal revision application and set aside the order of the Judicial Magistrate, First Class, Pen. The learned Sessions Judge held that since the wife had given up her claim for future maintenance under the divorce-deed, she was not entitled for maintenance under section 125 of the Code of Criminal Procedure, 1973.
7. Mr. Hiranandani appearing for the petitioner-wife submitted that the finding of the Sessions Court is erroneous inasmuch as, first of all, the husband did not examine anyone to prove the existence of the custom amongst the parties to obtain divorce by mutual consent. He further argued that assuming that such a divorce-deed was executed by the parties and such a custom was prevalent in their community, since the wife has not remarried, she is not disentitled to claim maintenance amount in view of Explanation (b) to section 125 of the Code of Criminal Procedure, 1973. He argued that even though there is alleged divorce between the parties, the alleged clause in the said divorce deed will not operate as a bar for the wife to claim maintenance under section 125 of the Code of Criminal Procedure, 1973.
8. I have heard Mr. Hiranandani appearing for the wife, as well as Mr. D.N. Salvi, the learned A.P.P. appearing for the State. To substantiate his arguments, Mr. Hiranandani relied upon the judgment of the Supreme Court Smt. Vanamala v. H.M. Ranganatha Bhatta. In this judgment, the divorced wife had not remarried after the divorce, which was by mutual consent, under section 13-B of the Hindu Marriage Act, 1955 and, therefore, on her showing that the divorced husband had neglected or refused to maintain her, she was held to be entitled for maintenance, by virtue of section 125(1) read with Clause (b) of its Explanation. The divorced husband in this case, had succeeded, before the Karnataka High Court, in denying her maintenance by relying on section 125(4) of the Code of Criminal Procedure, 1973, on the plea that a divorcee woman was not entitled to maintenance once it was found that the divorce was by mutual consent. The appellant-Vanamala, however, appealed to the Supreme Court, who allowed her appeal by holding as follows :
"The expression "wife" in sub-section (4) of section 125 does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the woman to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, sub-section (4) of section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. Therefore, a wife who obtains divorce by mutual consent cannot be denied maintenance by virtue of section 125(4)."
9. In the present case at hand, firstly, the Revisional Court has not applied its mind properly to the evidence with respect to the alleged divorce-deed. It has to be mentioned that the husband did not at all establish that there was such a custom amongst their community. In fact, it is nowhere on record as to what community the parties belonged and whether there was a custom amongst their community to put an end to the relationship of husband and wife by way of mutual consent.
10. Secondly, the Revisional Court, erred in applying the law as far as right of the wife to maintenance under Explanation (b) to section 125(1) of the Code of Criminal Procedure, 1973, assuming that there was a divorce by mutual consent. Explanation (b) states as follows :
"Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
11. Since the petitioner/wife has not remarried after her alleged divorce from respondent No. 1/husband, she is included in the definition of "wife" as per Explanation (b) to section 125(1) of the Code of Criminal Procedure, 1973. There is no exception even though divorce is allegedly by mutual consent and, therefore, this petition will have to be allowed in view of this position. Hence, the following order :
Criminal Revision Application No. 191 of 1994 is allowed. Judgment and order of the Sessions Judge, Alibag dated 9th June, 1994 is set aside. The order of Judicial Magistrate, First Class, Pen, dated 8th October, 1993 is restored.
Respondent No. 1/husband to comply with the order dated 8th October, 1993 of the Judicial Magistrate, First Class, Pen, and clear the entire arrears within a period of 6 months from today. He will continue to pay the amount as per the order dated 8th October, 1993 on or before 15th of every month.
Certified copy expedited.
Application allowed