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No Maintenance Section 125(4), Cr.P.C, If Parties residing separately by mutual consent


Bench: JUSTICE J.G. Chitre


2003(2) Criminal Court Case 421 (Bombay)


Heard both the Advocates at length.

2. Mr. Kankaria submitted that on 28.7.1989 both the petitioner and his wife in pursuance of settlement executed a deed, which has been titled as “Pharkatnama”. Paragraph No. 3 of the said deed unequivocally declared that after the said deed they were not to have relations as husband and wife as they were divorcing each other by customary system. Mr. Kankaria further submitted that by the said Paragraph No. 3 wife Kamalabai Popat Bodke relinquished her right in context with maintenance and the property. Mr. Naiknavare submitted that Kamalabai is entitled to get maintenance in view of Section 125 of Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience) and she is entitled to file fresh application whenever she needs alimony. He submitted that the said document cannot be treated to be a legal document of divorce. He justified the order, which has been put to challenge by the petitioner by this writ petition.

“Sub-section (4) of Section 125 of Code provides that 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”.

3. There may be a debate in context with the said document and its value as a document of divorce. There may be a debate whether it may be accepted as a relinquishment deed in respect of her right over alimony and property on account of it being not registered as required by provisions of Section 17 of Indian Registration Act, but it can be used for collateral purpose and it would be unequivocally heralding that after the said deed both petitioner and said Kamalabai were separating from each other by mutual consent. When that was so, the learned Magistrate should have kept in mind the provisions of Section 125(4) of the Code and should not have passed an order directing the petitioner to give her alimony because, it is not disputed fact that after said deed executed, they are residing separately by mutual consent.

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4. When the spouses entered into an agreement after matrimonial dispute, the texture of the document is to be seen, words, sentences used are to be considered. Intention expressed by the language of the document has to be noted and the Court should come to a conclusion as to what the spouses are expressing by such agreement and document executed between them. The document may be a document of customary divorce, the document may be for the purpose of giving a lumpsum amount to the wife as alimony or the document may be for residing separately permanently and adjusting the assets and liabilities of the pair. The agreement has to be read as a whole and the Court has to come to an appropriate conclusion. If by such an agreement or document the spouses are expressing to live separately by consent, it has to be considered appropriately in a matrimonial case. If the spouses are residing separately permanently by consent, then in view of Section 125(4) of Cr.P.C. the wife would not be having a right to claim alimony from the husband after the date of execution of said agreement if that agreement has been acted upon and appropriate provision for maintenance has been made.

5. Thus, in the present case the agreement which has been executed by the spouses is clearly heralding their intention to live separately by mutual consent and which has been acted on. Therefore, this petition will have to be allowed and the order which has been passed by J.M.F.C., Nasik in Criminal Application No. 157/1991 which has been assailed by the petitioner stands quashed. Resultantly the order which has been passed by the Additional Sessions Judge, Nasik in Criminal Revision Petition No. 207/1993 stands quashed.

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Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.

Petition allowed..

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