BOMBAY HIGH COURT
Bench: JUSTICE J.G. Chitre
POPAT KASHINATH BODKE
KAMALABAI POPAT BODKE ORS. On 6 Feb 2003
2003(2) Criminal Court Case 421 (Bombay)
Heard both a Advocates during length.
2. Mr. Kankaria submitted that on 28.7.1989 both a postulant and his mother in pursuit of allotment executed a deed, that has been patrician as “Pharkatnama”. Paragraph No. 3 of a pronounced help unquestionably announced that after a pronounced help they were not to have family as father and mother as they were divorcing any other by prevalent system. Mr. Kankaria serve submitted that by a pronounced Paragraph No. 3 mother Kamalabai Popat Bodke relinquished her right in context with upkeep and a property. Mr. Naiknavare submitted that Kamalabai is entitled to get upkeep in perspective of Section 125 of Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience) and she is entitled to record uninformed focus whenever she needs alimony. He submitted that a pronounced request can't be treated to be a authorised request of divorce. He fit a order, that has been put to plea by a postulant by this command petition.
“Sub-section (4) of Section 125 of Code provides that no mother shall be entitled to accept an stipend from her father underneath this territory if she is vital in adultery, or if, though any sufficient reason she refuses to live with her husband, or if they are vital alone by mutual consent”.
3. There might be a discuss in context with a pronounced request and a value as a request of divorce. There might be a discuss either it might be supposed as a resignation help in honour of her right over subsistence and skill on comment of it being not purebred as compulsory by supplies of Section 17 of Indian Registration Act, though it can be used for material purpose and it would be unquestionably heralding that after a pronounced help both postulant and pronounced Kamalabai were separating from any other by mutual consent. When that was so, a schooled Magistrate should have kept in mind a supplies of Section 125(4) of a Code and should not have upheld an sequence directing a postulant to give her subsistence because, it is not doubtful fact that after pronounced help executed, they are staying alone by mutual consent.
4. When a spouses entered into an agreement after matrimonial dispute, a hardness of a request is to be seen, words, sentences used are to be considered. Intention voiced by a denunciation of a request has to be remarkable and a Court should come to a end as to what a spouses are expressing by such agreement and request executed between them. The request might be a request of prevalent divorce, a request might be for a purpose of giving a lumpsum volume to a mother as subsistence or a request might be for staying alone henceforth and adjusting a resources and liabilities of a pair. The agreement has to be review as a whole and a Court has to come to an suitable conclusion. If by such an agreement or request a spouses are expressing to live alone by consent, it has to be deliberate reasonably in a matrimonial case. If a spouses are staying alone henceforth by consent, afterwards in perspective of Section 125(4) of Cr.P.C. a mother would not be carrying a right to explain subsistence from a father after a date of execution of pronounced agreement if that agreement has been acted on and suitable sustenance for upkeep has been made.
5. Thus, in a benefaction box a agreement that has been executed by a spouses is clearly heralding their goal to live alone by mutual agree and that has been acted on. Therefore, this petition will have to be authorised and a sequence that has been upheld by J.M.F.C., Nasik in Criminal Application No. 157/1991 that has been assailed by a postulant stands quashed. Resultantly a sequence that has been upheld by a Additional Sessions Judge, Nasik in Criminal Revision Petition No. 207/1993 stands quashed.
Parties endangered to act on a elementary duplicate of this order, duly real by a Court Stenographer/Sheristedar of this Court.