cwp.799.17.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.799 OF 2017
Petitioners : 1] Smt. Abhilasha d/o Uprendra Kamble,
(earlier known as Su. Abhilasha
W/o Nilesh Meshram), aged about 37 years,
Occupation – Nil.
2] Kumari Harshini alias Mugdha
D/o Nilesh Meshram, aged about 7 years,
Occupation – Nil as students,
through her natural guardian Mother
Smt. Abhilasha d/o Uprendra kamble
(earlier known as Sau. Abhilasha
W/o Nilesh Meshram),
Both R/o C/o Upendra Kamble,
In front of Koche Gas Agency,
Ambedkar Ward, Bhandara.
— Versus —
Respondent : 1] Mr. Nilesh s/o Deepak Meshram,
Aged about 40 years, Occupation : Service,
R/o Misal Layout, Opp. Vaishali School,
Bhim Chowk, Jaripatka, Nagpur.
2] The State of Maharashtra.
———————
Shri K.B. Zinjarde, Advocate for the Petitioners.
Shri H.K. Lingayat, Advocate for Respondent No.1.
———————
CORAM : S.B. SHUKRE, J.
DATE : 9th FEBRUARY, 2018.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally by
consent.
::: Uploaded on – 15/02/2018 16/02/2018 01:12:12 :::
cwp.799.17.jud 2
02] The only issue arises for consideration is, as to whether
or not a divorcée woman, whose marriage has been dissolved on
the ground of her cruelty to the husband, is entitled to receive
maintenance under Section 125 of the Code of Criminal Procedure
(for short ‘Cr.P.C.’). The learned Magistrate, who granted
maintenance answered the question as in the affirmative, while the
learned Additional Sessions Judge, who allowed the revision
application filed by the respondent answered the question as in the
negative and in favour of the respondent-husband. This question
has assumed importance because the marriage of the petitioner
and respondent no.1 was dissolved by granting a decree of divorce
during pendency of the revision application and this event, it is
seen from the order of the learned Additional Session Judge, which
is impugned in this petition, weighed on the mind of the learned
Additional Sessions Judge. By relying upon the case of Deb
Narayan Halder vs. Smt. Anushree Halder, reported in AIR 2003 SC
3174, the learned Additional Sessions Judge found that as the
petitioner was cruel to respondent no.1 and the decree of divorce
has also been granted on this ground, the petitioner would not be
entitled to receive any maintenance amount from her husband i.e.
respondent no.1. The learned Additional Sessions Judge did not
record any categorical finding that the ingredients of Section 125 of
::: Uploaded on – 15/02/2018 16/02/2018 01:12:12 :::
cwp.799.17.jud 3
the Cr.P.C. have not been shown to be fulfilled by the petitioner so
as to dis-entitle her to any order of maintenance under this Section.
03] The learned Counsel for respondent No.1 submits that the
conclusion so arrived at by the learned Additional Sessions Judge is
correct and consistent with the facts established on record. He also
submits that on the other hand, the learned Magistrate recorded
perverse findings. The learned Counsel for the petitioners disagrees.
He submits that basically there were no perverse findings recorded by
the learned Magistrate and that it were the learned Additional
Sessions Judge, who made perverse conclusions by ignoring the well
settled principles of law.
04] On going through the order passed by the learned
Magistrate granting maintenance of Rs.10,000/- per month in all
(Rs.6,000/- p.m. to petitioner no.1 and Rs.4,000/- p.m. to petitioner
no.2) and the order passed by the learned Additional Sessions Judge, I
find that there is great substance in the argument of the learned
Counsel for the petitioners and no merit in the submission of the
learned Counsel for respondent no.1.
05] Explanation to sub-section 1 of Section 125 of Cr.P.C.
clarifies that “wife” includes a woman who has been divorced by, or
::: Uploaded on – 15/02/2018 16/02/2018 01:12:12 :::
cwp.799.17.jud 4
has obtained a divorce from, her husband and has not remarried. The
explanation does not distinguish between a divorcée woman found
guilty of cruelty and the other divorcée woman. Therefore, every
woman, who is divorcée, would fall within the scope and ambit of the
explanation to sub-section 1 of Section 125 of Cr.P.C. In the case of
Deb Naayan Halder also, I could not come across any observation of
the Hon’ble Apex Court to the effect that a divorcee woman, who has
been granted divorce on the ground of her cruelty to the husband is
dis-entitled to receive maintenance under Section 125 of Cr.P.C. The
learned Counsel for respondent no.1 also graciously concedes this
fact. I do not understand as to how the learned Additional Sessions
Judge could have culled out from this case something, which was not
it’s ratio. Be that as it may, the fact remains that the learned
Additional Sessions Judge has committed manifest illegality by holding
that a divorcée woman, who has been granted divorce on the ground
of her cruelty to her husband is not entitled to receive maintenance.
In fact, the law is that and it is a settled one, even such a woman is
entitled to receive maintenance, which has been rightly found by the
learned Magistrate when he granted overall maintenance of
Rs.10,000/- to both the petitioners.
06] On the quantum of maintenance, I must say, the learned
Magistrate has rightly taken into consideration the interim
::: Uploaded on – 15/02/2018 16/02/2018 01:12:12 :::
cwp.799.17.jud 5
maintenance granted by the Family Court and by a specific finding
recorded to that effect, adjusted the amount against the final amount
of maintenance that he granted while allowing application of the
petitioners under Section 125 of Cr.P.C.
07] In the result, I find merit in the petition and it deserves to
be allowed.
08] The petition is allowed. The impugned order passed by
the Additional Sessions Judge is quashed and set aside and the order
passed by the learned Magistrate is confirmed.
Rule is made absolute in the above terms.
(S.B. Shukre, J.)
*sdw
::: Uploaded on – 15/02/2018 16/02/2018 01:12:12 :::