Bombay High Court
Vinod Wamanrao Nehulkar vs Mangala Vinod Nehulkar (Smt.) And Ors. on 31 July, 1981
JUDGMENT S.K. Desai, J.
1. This application is preferred against the order of the learned Additional Sessions Judge, Ahmednagar given in Criminal Revision Application No. 71 of 1979. By the impugned order he dismissed the revision application. The revision application was from the decision of the learned Judicial Magistrate (First class), Sangamner in Criminal Miscellaneous Application No. 22 of 1977. A few facts may be stated. Matrimonial Petition No. 249 of 1977 was filed by the revision petitioner before me as the petitioner against his wife seeking dissolution of marriage. The marriage took place on 14th December, 1975. The parties stayed together till 4th August, 1976 on which date the respondent left the matrimonial home. However, according to the allegations in the matrimonial petition which were confirmed in evidence by the husband. The respondent resisted attempts for consummation of marriage. Medical examination of the respondent wife thereafter took place and on such medical examination the doctors opined that she was suffering from, what is now designated as a sexually transmitted disease (originally general disease). Although such serious allegations were made in the petition the respondent wife chose to remain absent. The allegations do not appear to have been disputed by proper pleading and the husband's evidence remained uncontroverted. After considering the husband's evidence and on perusal of the medical certificates which were produced before him, the then Additional Principal Judge, of the City Civil Court dissolved the marriage on 23rd June, 1977.
2. There is provision in the Hindu Marriage Act enabling even a respondent wife to apply for maintenance but the wife did not apply for maintenance either pendente lite or permanent maintenance. Obviously this was because this was a matter in which the Court may have rejected the application. From the facts averred by the husband and accepted by the matrimonial Court it is clear that this was a marriage only in name and the wife or rather wife's father had played a fraud to get this woman married although she was suffering from this disease even at the time of marriage and was, therefore, unable to consummate the same.
3. The wife had however, preferred an application for maintenance under section 125 of the Criminal Procedure Code, although, for obvious reasons, did not apply for maintenance in the matrimonial proceedings. Under section 125 of the Criminal Procedure Code after 1973, wife now includes divorced wife. The only bar to be found on the wife being granted maintenance is the bar contained in section 125(4). Since the marriage has been dissolved by a decree of divorce. There is no question of the wife living in adultery or the wife refusing to live with the husband, the latter because no divorce wife can be compelled to stay with erstwhile husband. In other word, despite the fact that she was a guilty party in the matrimonial proceedings she became entitled as the divorced wife to receive maintenance under section 125 of the Criminal Procedure Code. The only thing which was required to be considered by the Court was whether there was any express bar on the grant of maintenance. No such bar is provided by the legislature and the trial Court was, therefore, obliged only to consider the aspects provided under section 125.
4. The learned Judicial Magistrate, Sangamner (Shri B.P. Kamble) has, however, made certain extraordinary statements in the course of his order. There are to be found in paragraph 7. The only thing correct in this paragraph is the last observation, namely, about it not being proved that the applicant is living in adultery. The reasons given by the Judicial Magistrate earlier in the para for rejecting the medical evidence is before the matrimonial Court and the basis for his conclusions are absurd, improper and must be regarded an as abuse of judicial power. It was totally unnecessary and equally impermissible to indulge in this speculation. However, the remaining portion of the order dealing with the provisions under section 125 are in order and it is unfortunate that the learned Judicial Magistrate chose to go out of the way to the extent of making the observations in paragraph 7 which were not really necessary.
5. The aggrieved husband who was directed to pay maintenance of Rs. 100/- per month carried the matter to the Sessions Court at Ahmednagar but his revision petition was dismissed. It is thereafter, that the present application has been preferred.
6. Apart from the regrettable observations in paragraph 7 the Judicial Magistrate has properly analysed section 125. I see nothing in section 125 which will prevent such a woman from getting maintenance although under ordinary matrimonial law she would have been denied maintenance. The wisdom or otherwise of the legislative provisions is for the legislature to consider. It is apparent that when such facts are brought to the notice of the Court that the Court may recommend amendment, but till any amendment of the legislative provisions take place, the legislative provision is given effect then the award of maintenance is in order although to a totally under serving women.
7. The only relief which I can think of granting to the application before me (the husband) who is indeed the aggrieved party and who should have some remedy against the respondent is to reduce the quantum of maintenance which appears to me to be can the high side. At present the husband is receiving gross emoluments of Cover Rs. 800/- per month which there are deductions of about Rs. 200/- leaving about Rs. 600/- on his hand. The present level of Rs. 800/- may have been reached during the last year bearing in mind the fairly rampant inflation which is subsisting for the last one year or there abouts. Before that the gross emoluments must have been somewhat lower. Further, although the emoluments have increased, it would transpire that the responsible and liabilities of the applicant husband have equally increased. He has got married as he was entitled to and he has now a family of wife and child to support. I am informed by the learned Advocate for the applicable husband that one more child is on the way. There are other members of the family entitled to his support. Bearing all these facts in mind and the observations made by me earlier, I think this is a fit case in which the quantum of maintenance ought to be reduced and I propose to reduce the quantum in two levels as follows. In the result, it is held that the 1st respondent is entitled to maintenance held that but the quantum for maintenance granted to her in reduce to Rs. 50/- (fifty) per month from the date of the application upto 31st December, 1980 and with effect from 1st January, 1981 it will stand enhanced to Rs. 75/- (seventy five) per month. Subject to this variation the award of maintenance is confirmed. It will be open to either side to seek enhancement or reduction of this amount by following appropriate proceedings.