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Bhagwat Pitambar Borse vs Anusayabai Bhagwat Borse on 8 February, 2018

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3IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 724 OF 2016

Bhagwat Pitambar Borse, … Petitioner
Age 71 years, Occu: Nil,
R/o Kngaon, Taluka Yawal,
District Jalgaon
At present Bhusawal Dist.
Jalgaon

VERSUS

1. Anusayabai Bhagwat Borse
(Anusayabai Arjun Pachpol)
Age 66 years, Occu:Sewing Work,
Labour Grocer, R/o Kingaon,
Taluka Yawal, Dist. Jalgaon

2. State of Maharashtra, … Respondents

Mr. B. R. Kedar, Advocate for the petitioner,
Mr. P. P.Kothari h/for Mr. S. S. Bora, Advocate for
respondent No.1,
Mr. A. P. Basarkar, APP for respondent No.2 State.

CORAM : K. L. WADANE, J.

RESERVED ON : 2nd February, 2018
PRONOUNCED ON 8th February, 2018

JUDGMENT:

1. Heard. Rule. Rule made returnable forthwith.

With consent of parties, the petition is taken up for

final disposal.

2. The petitioner has challenged the order dated

23.06.2015 passed by the learned Additional Sessions
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Judge, Bhusawal in Criminal Revision Application

No.101/2014, by which the revision is dismissed and the

order 07.07.2012 passed by the learned Judicial

Magistrate, First Class, Yawal rejecting Misc.

Application No.136/2006 filed by the present petitioner

under section 125(5) and section 127 of the Code of

Criminal Procedure Code, is confirmed.

3. The facts leading to the present writ petition,

in brief, are as under:

i. The respondent No.1-wife had filed Criminal

Misc. Application No. 65/1983 before the learned

Judicial Magistrate, First Class Yawal for maintenance

under section 125 Cr.P.C. That application was decided

on 11.08.1992 and maintenance @ Rs.100/- per month was

granted in favour of respondent wife. In revision i.e.

Cri. Revision No. 227/1992, the learned District Judge,

Jalgaon enhanced the amount of maintenance to Rs.200/-.

ii. The petitioner-husband had filed Hindu Marriage

Petition No. 298/1997 for dissolution of marriage. It

was decided on 24th April, 2006 and the divorce is

granted. The petitioner, then filed Misc. Application

No. 136/2006, under section 125(5) and section 127 of

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the Code of Criminal Procedure Code for cancellation of

the maintenance order on the ground that divorce decree

is passed against the respondent wife on the ground of

adultery and the marriage is dissolved. The learned

Judicial Magistrate, F.C. Yawal rejected the

application. The petitioner preferred Criminal Revision

Application No. 101/2014. The learned Additional

Sessions Judge, dismissed the revision and confirmed

the order passed by the learned Judicial magistrate,

F.C. Yawal. Hence this criminal writ petition.

4. Heard Mr. B. R. Kedar, learned counsel for the

petitioner, Mr. P. P.Kothari learned counsel appearing

for respondent No.1, and Mr. A. P. Basarkar, APP for

respondent No.2 State.

5. Mr. Kedar, the learned counsel for the

petitioner submits that the petition for dissolution

was allowed on three grounds i.e. (i)desertion, (ii)

cruelty at the hands of respondent wife and (iii) the

wife was living in adultery. So, according the learned

counsel for the petitioner, the order of maintenance

needs to be cancelled in view of Section 125(4) and (5)

and section 127(2) Cr.P.C. Mr. Kedar further submits

that the decree of divorce passed in Hindu Marriage

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Petition No. 298/1997 was challenged by the respondent

wife in the District Court by filing Regular Civil

Appeal No. 187/2006. The District Court, by order dated

26.03.2012, confirmed the decree of Divorce.

6. Mr. Kedar further submits that the respondent

wife has assailed the said order in Second Appeal

No.647/2012 before this Court. The second appeal was

also dismissed by this Court by order dated 24th July,

2017. According, to Mr. Kedar, the learned counsel for

the petitioner, the petitioner husband has, by the

cogent evidence, established that the respondent was

living in adultery, therefore, she is not entitled for

maintenance from the petitioner. However, the learned

Magistrate has wrongly the dismissed the application

for cancellation of maintenance and the said finding

was wrongly confirmed by the Revisional Court.

7. Mr. Kothari, the learned counsel appearing for

the respondent No.1 wife submits that single instance

of sexual intercourse is not sufficient to constitute

adultery. It is for the petitioner to establish that

the respondent wife was continuously living adulterous

life. According to the learned counsel, no independent

evidence is produced before the learned Judicial

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Magistrate, F.C. Yawal for cancellation of the

maintenance on the ground of adultery. It is for the

petitioner husband to prove the alleged adultery of the

respondent in the proceeding before the Magistrate by

leading evidence to that effect. So, according to the

learned counsel for the respondent wife, the

petitioner has failed to establish that the respondent

was living in adultery continuously and that aspect

has not been independently proved in the proceeding

before the trial court i.e. Magistrate. Therefore, the

learned Magistrate has rightly rejected the application

so also the learned Additional Sessions Judge has

rightly rejected the revision presented by the

petitioner husband.

8. Mr. Kothari, learned counsel appearing for the

respondent, in support of his contentions, relied upon

the observation in case of Vanmala Vs. H.M.Rangnatha

Bhatta, reported in (1995) 5 Supreme Court Cases 299,

in which it is observed that divorced wife, who has

not remarried, is entitled for maintenance. The

observation of the above cited case is not applicable

to the facts of the present case. In this case, it is

the contention of the petitioner that the divorce was

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granted by the Civil Court on the ground of adultery

and therefore, in view of provisions of Section 125 (4)

and (5) the respondent wife is not entitled for

maintenance.

9. Section 125(4) and (5) Cr.P.C. reads as follows:

“125.Order for maintenance of wives, children
and parents. (1) If any person having
sufficient means neglects or refuses to
maintain-

(a) ….

(2) ..

(3) …

(4) No Wife shall be entitled to receive an
allowance from her husband under this section
if she is living in adultery, or if, without
any sufficient reason, she refuses to live
with her husband, or if they are living
separately by mutual consent.

(5) On proof that any wife in whose favour an
order has been made under this section is
living in adultery, or that without sufficient
reason she refuses to live with her husband,
or that they are living separately by mutual
consent, the Magistrate shall cancel the
order. ”

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10. Learned counsel for the respondent relied upon

the observation of this court in case Chandrakant

Gangaram Gawade Vs. Sulochana Chandrakant Gawade and

others, reported in 1996 Cri.L.J.520, in which, it is

observed that mere stray or single lapse on part of

wife is not sufficient to bring her conduct within

meaning of ‘living in adultery’ as provided under

section 125(4) Cr.P.C. It should be continuous course

of adulterous conduct. Learned counsel also relied on

the observation of this Court in the case Chanda

Preetam Wadate Vs. Preetam Ganpatrao Wadate and anr.,

reported in 2002 Cri.L.J. 397 to contend that stray

instance of departure from virtue would not be

sufficient to deny maintenance. Learned counsel for

the respondent further relied on the decision of this

Court in the case of Nirmaldas s/o Ratan Alhat Vs.

Sunita w/o Nirmaldas Alhat and ors., reported in 2006

Cri.L.J. 2635, in which it is observed that respondent

was unable to establish that petitioner was living in

adultery through evidences. The learned counsel

further placed reliance on the decision of Gauhati

High Court in the case of Abdul Sattar Vs. State of

Assam, reported in Lex (Gau) 2008 6 63, in which, in

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para 5, it is observed that-

“5. Even if, for a moment, it is assumed
that what the present petitioner contends
is true that the opposite party had sworn
an affidavit dissolving her marriage with
the present petitioner, the fact of the
matter remains that a Muslim marriage
cannot be dissolved by a wife by swearing
an affidavit. This position of law is, in
fact, not in dispute. Notwithstanding,
therefore, the accusations made against the
opposite party that she had been, once,
living with her paramour, the fact of the
matter remains that the marriage-tie
between the present petitioner and the
opposite party having not been snapped
according to the law, applicable to the
parties, their marriage-tie still survives
irrespective of fact as to whether the
opposite party had voluntarily gone with
her paramour and lived with her paramour or
not. Thus, the crucial facts, which are
relevant and necessary for determination of
the case, were these: Whether the parties
to the maintenance proceedings were husband
and wife and whether the present
petitioner, as husband, refused to maintain
the opposite party and whether such refusal
is legally sustainable?”

11. I have gone through the observations in the above

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cited case. Those are not applicable to the peculiar

facts of the present case. Here, in the present case,

admittedly divorce in favour of the petitioner husband

was granted on the ground that respondent wife was

living in adultery. It is also undisputed that the

order of the civil court granting divorce on the ground

of adultery has attained finality. Therefore, in such

circumstance, the question is whether it is required

for the petitioner to prove this fact again before the

criminal court. Obviously, the answer is ‘No’ for the

reason that the question of adultery was finally

determined by the Civil Court and that finding is

confirmed by the first appellate Court as well as by

this Court in Second Appeal. Therefore, such finding

is binding upon the parties in the criminal proceedings

also.

12. Relevant finding of the Civil Judge in HMP No.

298/1997 reads as under:

“6. The petitioner in his evidence at Exh.
68 deposed same things as in the petition.
He gain disclosed names of two persons,
Chudaman Nathu Borse and Narayan Tukaram
Mahajan. He received a letter written by his
wife to narayan Tukaram Mahajan from the same

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person which was brought to him by Shamrao
Supadu Mali. that letter is at Exh.81. He
got his letter examined through the
Handwriting Expert at Aurangabad. He seen
his wife when terminated her pregnancy in the
year 1980 in the field of Chudaman Nathu
Borse. He further deposed that he was
having personal knowledge about illicit
relations of the wife with narayan Tukaram
Mahajan. He suffered a set back to his
reputation due to it. In his cross
examination, he admitted that he is
acquainted with the handwriting of wife,
when this letter was written her father was
serving as Talathi and it was written on
Inward-Outward registers page. Article A is
report of Handwriting Expert. He denied that
Exh.89 is not in the handwriting of his wife
and he fabricated this letter in her name.
Thus, evidence about the fact that in the
year 1980 he seen his wife lying in the
field of Chudaman Nathu Borse and she aborted
her fetus remained unchallenged. His
personal knowledge about illicit relations
of his wife with Narayan Tukaram mahajan also
remained unchallenged in his cross
examination. He examined Shaligram Bhavrao
Patil to support his contentions. But his
case is supported by the evidence of
Handwriting Expert.”

13. The above finding was assailed by the

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respondent wife before the District Judge, Jalgaon

by filing Regular Civil Appeal No. 187/2006. The

learned District Judge, Jalgaon has also confirmed

the finding of the Civil Court by observing as

follows:

“17. In the light of above observations and
discussions, I am of the view that, the
evidence, led by the respondent-husband, is
sufficient to prove that the appellant-wife
has deserted him for more than two years and
it is also established that the appellant-
wife was leading adulterous life. Learned
Judge has taken into consideration all
these facts and he correctly came to the
conclusion that there was desertion and
cruelty on the part of the appellant-wife and
she was also leading adulterous life. The
finding, given by the learned Judge, in my
opinion, does not require interference.
Learned Judge has correctly granted the
decree for divorce. The appeal is, therefore,
liable to be dismissed with costs.”

14. The order passed by the learned District Judge

Jalgaon in RCA 187/2006 was assailed by the present

respondent-wife by filing Second Appeal No. 647/2012

before this Court. This Court, by order dated 24th

July, 2017, dismissed the second appeal. It is observed

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by this Court in para 6 of the judgment that:

“06. There is concurrent findings of facts by

the trial Court as well as first appellate

Court in respect of the abovementioned three

grounds of divorce. The letter Exh. 81 was

examined by the handwriting expert namely

Sanjay Badrinath Kachar (PW 3) and he opined

that it is in the handwriting of the appellant.

The said letter speaks for illicit relations of

the appellant with one Chudaman Nathu Borse and

Narayan Tukaram Mahajan. Admittedly, the

appellant and the respondents are residing

separate since 1970. The trial Court as well as

first appellate Court recorded positive

findings that the appellant and the respondents

are neighbours. The trial Court specifically

observed that the appellant is keeping illicit

relations with some other persons on the face

of the respondent and that itself amounts to

mental cruelty. All these factual aspects have

been properly considered by the trial Court as

well as first appellate Court. The concurrent

findings of the facts recorded by this Court

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needs no reconsideration in the Second Appeal.

No substantial question of law involves in this

appeal.”

15. In view of the above, it is not necessary for

the petitioner to lead evidence again in the proceeding

before the learned Magistrate to prove the adultery on

the part of respondent wife. Once the dispute between

between the parties in relation to a particular issue

is already adjudicated by the competent courts, it is

not necessary for the petitioner to prove the same

thing again and again in different proceeding,

particularly in criminal proceedings.

16. Mr. Kedar, the learned counsel for the

petitioner has relied upon the observation in the case

of V. M. Shah Vs. State of Maharashtra and another,

reported in (1995) 5 Supreme Court Cases 767, in

which, in para No. 11, wherein, the Apex Court has

observed as follows:

“11. As seen that the civil court after full-
dressed trial recorded the finding that the
appellant had not come into possession through
the Company but had independent tenancy rights
from the principal landlord and, therefore the

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decree for evictions was negatived. Until that
finding is duly considered by the appellate court
after weighing the evidence afresh and if it so
warranted reversed, the findings bind the
parties. The findings recorded by the criminal
court, stand superseded by the findings recorded
by the civil court. Thereby, the findings of the
civil court get precedence over the findings
recorded by the trial court., in particular, in
summary trial for offences like section 630. The
mere pendency of the appeal does not have the
effect of suspending the operation of the decree
of the trial court and neither the finding of
the civil court gets nor the decree becomes
inoperative. ”

In the above case, the finding of the civil

court was under challenge in the Appellate court. The

Apex court observed that the findings recorded by the

Civil Court prevails until it is reversed by the

appellate Court after weighing the evidence afresh.

Here, in the present case, in view of the above

observation, the findings recorded by the Civil Court

that the respondent wife was living adulterous life is

upheld by the competent courts in first and second

appeals and attained finality, therefore the same

will definitely prevail.

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17. Mr. Kedar, the learned counsel for th peititoenr

has relied upon the observation of this Court in the

case of Sangavva Gulappa Khandekar Vs. Gulappa

Kariyeppa Khandekar, reported in BLR 1942 44 514, LAWS

(BOM)1942 4 4, in which the amount of maintenance

awarded to the wife who was living in adultery is

cancelled. Mr. Kedar, further relied upon the

observations in the case of Satyawan Jagtap ors.

Vs. Smt. Vimal Satyawan Jagtap ors., reproted in 1999

ALL MR (Cri) 1781. The facts in the above case are

identical with the facts of the present case. The facts

and observations in the above case reads as follow:

“2. The petitioner was married to the
respondent No. 1 on 27-5-1975. The wife had
initially filed Maintenance Application
against the husband in the year 1980 which is
numbered as Misc. Application No. 76 of 1980.
In the said application order dated 10-8-1983
for maintenance was passed in favour of the
wife whereby the petitioner was directed to
pay maintenance at the rate of Rs. 125/- per
month to the respondent No. 1-wife. Thereafter
second application was filed being Misc.
Application No. 182 of 1986. That application
was allowed by the Ld. J.M.F.C. Daund by
judgment and order dated 17th June 1991 and
the respondent-wife was granted maintenance at
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the rate of Rs. 200/- per month and each of
the two children were granted maintenance at
the rate of Rs. 100/- per month. That order
was challenged before the Sessions Court in
Criminal Revision Application which came to be
dismissed and the order of maintenance was
confirmed by the judgment of the Session Court
on 26-4-95. In the mean time when the
application for maintenance was pending before
the trial Court, the petitioner-husband filed
petition for divorce against the wife in the
Court of Civil Judge, Senior Division, Thane
bearing M. J. Petition No. 38 of 1990. That
petition was filed on the ground of adultery,
cruelty and desertion under section 13(1)(i)
(i-a) and (i-b) respectively. The said
petition was not contested by the wife who
remained absent and, therefore, ex-parte
decree came to be passed by the trial Court on
9-3-1992 for divorce under section 13 sub-
section (1) Clause (i-a) and (i-b) i.e. on the
grounds of cruelty and desertion. The wife in
the mean time had applied for execution of the
order of maintenance granted in her favour by
the two courts below. The said execution
proceedings were contested by the petitioner-
husband on the ground that the decree of
divorce was, in the meantime, granted against
the wife and, therefore, he was not liable to
pay any amount to the wife towards the
maintenance including the arrears of

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maintenance which had accumulated before the
passing of the decree of divorce. That
application was filed before the J.M.F.C.
bearing M.A. No. 355 of 1991 on 26-6-92
purporting to be made under section 125(3) of
the Cr.P.C. The Ld. J.M.F.C., Daund rejected
the said application by his judgment and order
dated 8th July 1992 which is under challenge
in the present writ petition.

6. So far as the liability of the husband for
the payment not only of the future maintenance
but even with regard to the arrears of
maintenance is concerned, the petitioner, in
my opinion, would not be liable to pay the
same in view of the ratio of the decision of
the Division Bench of this Court in Sangavva’s
case (supra) . However, the contention of Mr.
Shah with regard to the liability for the
payment of maintenance to the children is, in
my view, untenable. The perusal of the ex-
parte decree for divorce passed by the Jt.
Civil Judge Senior Division, Thane by order
dated 9-3-1992 would show that the decree of
divorce was passed under section 13(1)(i-a)
and (i-b) i.e. on the ground of cruelty and
desertion and not under section 13(1)(i) i.e.
the ground of adultery Mr. Shah sought to rely
on the observations of the trial Court,
particularly in para 3 of the judgment, where
the trial Court had observed that the husband
had alleged, inter alia, that wife was living

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immoral life and during that period she had
given birth to two children out of the illicit
relations with other person. What I find is
that though those observations were made by
the Civil Court, the decree of divorce was not
granted on the ground of adultery and if the
said Court had found that the wife was living
in adultery, nothing prevented the Court to
pass decree under section 13(1)(i) i.e. on the
ground of adultery. In any event, there is no
finding today by any competent Court that the
respondent Nos. 2 and 3 children were born per
alium. In the absence of any finding or decree
of any competent Court that the children were
born per alium, they are entitled to get
maintenance as per the impugned order in
execution proceedings.

8. In the result the petition is partially
allowed and the order of the trial Court dated
8-7-1992 passed in Misc. Application No. 355
of 1991 is set aside only to the extent of
execution of arrears of maintenance in favour
of respondent No. 1 wife only. Rule is made
absolute accordingly. In view of the above the
order of stay granted by this Court on 9th
June 1993 shall stand vacated as regards
payment of maintenance to respondent Nos. 2
and 3.

18. In view of the above, I am of the opinion that

once the petitioner husband has established that the

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respondent wife was living in adultery and on that

ground divorce has been granted to the petitioner, in

such circumstance, it is not necessary for the present

petitioner husband to prove the same thing again in

different proceeding. In view of the concurrent

findings, it is established that the respondent was

leading adulterous life.

19. For the reasons stated above, I am of the

opinion that learned Judicial Magistrate, First Class

has wrongly rejected Misc. Application No. 136/2006,

filed by the present petitioner under section 125(5)

and section 127 of the Code of Criminal Procedure for

cancellation of maintenance as well as the learned

Additional Sessions Judge, Bhusawal has wrongly

dismissed Criminal Revision Application No.101/2014.

Therefore both the orders deserve to be set aside.

Hence following order:

O R D E R

i. Criminal writ petition is allowed.

ii. Misc. Application No. 136/2006, filed by the

present petitioner under section 125(5) and

section 127 of the Code of Criminal Procedure for

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cancellation of maintenance is hereby allowed.

iii. Both the orders, i.e. Order 07.07.2012 passed by

the learned Judicial Magistrate, First Class,

Yawal rejecting Misc. Application No. 136/2006,

filed by the present petitioner under section

125(5) and section 127 of the Code of Criminal

Procedure and order dated 23.06.2015 passed by

the learned Additional Sessions Judge, Bhusawal in

Criminal Revision Application No.101/2014, are

quashed and set aside.

iv. Rule is made absolute in the above terms. No

costs.

(K. L. WADANE, J.)

JPC

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