1 Cri.W.P. 1258-2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1258 OF 2017
Dnyaneshwar Eknath Kachre,
Age : 39 Years, Occu. Agriculture,
R/o. Padali, Tq. Pathardi,
Dist. Ahmednagar ..PETITIONER
Versus
Sunita W/o Dnyaneshwar Kachre,
Age : 31 Years, Occu. Agriculture,
R/o. Telwadi, Tq. Paithan,
Dist. Aurangabad ..RESPONDENT
…
Advocate for Petitioner : Mr. C.R. Thorat
Advocate for Respondent : Mrs. Shubhangi D. More
…
CORAM : MANGESH S. PATIL, J.
Judgment reserved on : 23.07.2018
Judgment pronounced on : 24.08.2018
JUDGMENT :-
Rule. The rule is made returnable forthwith. With the consent of
parties, the matter has been heard finally.
2] This is a Writ Petition under Article 227 of the Constitution of
India preferred by the husband, being aggrieved and dissatisfied by the
Judgment and order dated 12.06.2017 passed by the learned Additional
Sessions Judge, Aurangabad in Criminal Revision Petition No. 222 of
2014, quashing and setting aside the Judgment and order passed by the
::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
2 Cri.W.P. 1258-2017.odt
learned Judicial Magistrate First Class, Aurangabad in Misc. Criminal
Application No. 67 of 2009 preferred by the respondent wife under
Section 125 of the Code of Criminal Procedure, whereby the learned
Magistrate was pleased to reject the application. Learned Additional
Sessions Judge awarded maintenance to the respondent-wife @ Rs.
3,000/- per month from the date of the application as well as Rs.
3,000/- by way of costs. In order to avoid confusion, the parties are
herein after referred to as husband and wife.
3] The facts as are necessary for decision of the Writ petition are to
the effect that the couple was married in the year 2003. They cohabited
well for a period of two years and thereafter the husband allegedly
started demanding money for purchasing some land. On failure of wife
to pay the money, in the month of August 2008, husband assaulted her
and drove her out of the house. He then issued her notice to resume
cohabitation. She replied the notice and resumed the marital life. Even
thereafter, he ill-treated her and driven her out of the house. The wife
filed complaint under Section 498-A of the Indian Penal Code. It was
also alleged that thereafter husband performed second marriage. The
wife was unable to maintain herself, whereas husband was having
sufficient means. She filed proceeding under Section 125 of the Code of
Criminal Procedure.
::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
3 Cri.W.P. 1258-2017.odt
4] The husband resisted the application inter alia on the ground that
he had never refused or neglected to maintain the wife. But it was she
who on her own accord deserted him. In spite of preferring a
proceeding for restitution of conjugal rights which was decided in his
favour, she did not resume cohabitation. He filed a proceeding for
divorce and succeeded in obtaining a decree for divorce on the ground
of desertion by the wife and therefore, wife was not entitled to claim
maintenance. Husband also denied to have solemnized second marriage.
5] After hearing, the learned Magistrate by the impugned Judgment
and order dated 06.09.2013, rejected the application by holding that the
wife failed to prove that the husband had refused or neglected to
maintain her and also held that she herself had deserted him and the
decision in the divorce petition was sufficient to hold that she had
deserted him and therefore, she was not entitled to claim maintenance.
In the process, the learned Magistrate relied upon couple of decisions of
the Supreme Court in the case of Rohatash Singh Vs. Smt. Ramendri
And Others 2000 Cri. L.J. 1498(1).
6] Being aggrieved and dissatisfied by the rejection of her
application, the wife preferred Criminal Revision Petition No. 222 of
2014 before the learned Additional Sessions Judge, Aurangabad. The
learned Additional Sessions Judge by the impugned Judgment and order
::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
4 Cri.W.P. 1258-2017.odt
dated 12.06.2017 quashed and set-aside the Judgment and order passed
by the learned Judicial Magistrate First Class and allowed the petition
and awarded maintenance as mentioned herein above.
7] The learned Advocate for the husband vehemently
submitted that the husband had initially obtained a decree for
restitution of conjugal rights under Section 9 of the Hindu Marriage Act
and still the wife refused to resume cohabitation. He had to file a
petition for divorce on the ground of desertion in which he had
succeeded in obtaining divorce, and the decision has become final. No
fault could have been found in the observations and the conclusions of
the learned Magistrate in concluding that the wife having deserted the
husband without reasonable cause hence she was not entitled to claim
maintenance. The learned Advocate would submit that the wife who
has not been divorced nor has obtained divorce was not covered by the
definition of wife given in Clause b of the Explanation to Sub Section (1)
of Section 125 of the Code of Criminal Procedure. In view of the
decision of Division Bench of this Court in the case of Bhagwan Raoji
Dale Vs. Sushma alias Nanda Bhagwan Dale
1998 All M.R.
( Cri)
1266, the wife is not entitled to claim maintenance under that
provision. He would submit that merely because now during pendency
of the proceeding for maintenance under Section 125 of the Code of
Criminal Procedure, the husband has obtained a decree for divorce, that
::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
5 Cri.W.P. 1258-2017.odt
would not make her entitled to claim maintenance on the sheer ground
that she is a divorced wife. Therefore, there was no error committed by
the learned Magistrate in concluding that the wife was not entitled to
maintenance since she herself had deserted the husband.
8] The learned Advocate for the husband would therefore, submit
that the decision of the Magistrate was rendered after correct
appreciation of the facts and law. There was no perversity or
arbitrariness and the Revisional Court ought not to have interfered. On
the contrary, the learned Additional Sessions Judge missed the point
and has clearly over-looked the fact that there was a decree for
restitution of conjugal rights operating against the wife, as also the
husband had obtained the divorce on the ground of desertion which
decisions had become final and as a matter of fact the decision clearly
established that the wife had voluntarily left the company of the
husband. There was no sufficient cause for her to reside separately from
husband.
9] The learned Advocate for the respondent supported the impugned
Judgment and order. He submitted that the learned Magistrate had
clearly erred in ignoring the fact that the wife was a divorcee who was
entitled to claim maintenance, but refused to award it. Even the
divorcee wife is entitled to claim maintenance under Section 125 of the
::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
6 Cri.W.P. 1258-2017.odt
Code of Criminal Procedure. The learned Additional Sessions Judge,
correctly appreciated this aspect of the matter and has rightly awarded
maintenance to the wife which may not be interfered with.
10] It is necessary to note that in her affidavit-in-reply filed in this
proceeding, the wife has specifically admitted about the decree of
divorce having become final and also admitted that it was preceded by
the decree for restitution of conjugal rights, which according to her was
obtained by the husband by practicing fraud upon the Court. It is
further stated that the husband had solemnized second marriage and
the second wife had also given birth to a child on 11 June 2011. Even
by producing a birth certificate ( Exh.R-1) attempt has been made to
forge the name of the husband as Dnyandev Eknath Kachre, though he
is a Dnyneshwar Eknath Kachre.
11] I have carefully gone through the papers including the affidavit-in
reply. As can be noticed, there is no dispute about the fact that couple
was married in the year 2003 and after few years of marriage there was
discord between the two and they became separate. It is also admitted
that the husband initially filed proceeding for restitution of conjugal
rights which was decreed and the decision has become final. Though an
attempt was made by the wife to get ex parte decree set-aside, but even
her such attempt had failed. The husband thereafter instituted a
::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
7 Cri.W.P. 1258-2017.odt
proceeding for divorce on the ground of desertion. The wife though
filed her say, did not turn up to contest the matter subsequently and it
resulted in passing of decree for divorce on 14.05.2009. She applied for
setting-aside the decree and for restoration of the proceeding by filing
Misc. Criminal Application No. 173 of 2013. However, it seems that
even that attempt failed and the decree for divorce has become final.
Even in her affidavit-in-reply the wife has specifically admitted that the
decree for divorce has become final. It is in the back-drop of such
admitted fact that one needs to appreciate and ascertain whether such a
wife would be entitled to claim maintenance under Section 125 of the
Code of Criminal Procedure.
12] In the case of Bhagawan Raoji D
ale
(supra)
the Division Bench
of this Court on a reference had an occasion to decipher status of such a
wife and her right in question. It was concluded in paragraph 31 as
under :-
” 31 In the light of the above discussion, we may sum up
our conclusion as under. It is not every divorced wife who
can claim maintenance under Section 125(1) of the Code. A
woman who has been divorced by her husband is included
in the first part of Explanation (b) to Section 125(1). She
can claim maintenance under Section 125(1). In this
category would normally, fall the case of a Muslim woman
who has been unilaterally divorced by her husband in
accordance with Muslim Personal Law. This category may::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
8 Cri.W.P. 1258-2017.odtalso include a woman who, under the customary law
applicable to some Hindus, has been unilaterally divorced by
her husband. The second category falling under
Explanation (b) of Section 125(1), who can claim
maintenance under the said section, consist of a woman
who has obtained divorce from her husband, meaning
thereby that the wife has initiated proceedings for obtaining
divorce from the husband, as indicated in paragraph 24
above. In this view of the matter, we are of the opinion that
the Division Bench decision of this Court in Shardchandra
Satbhai Vs. Indubai Satbai, 1978 Mh.L.J. 123, does not
require reconsideration and we are in agreement with the
ratio of the said decision. We also approve of the decision
rendered by three learned Single Judges of this Court in the
three cases discussed above”13] As can be seen, apparently the decision of the Division Bench
would cover the situation in the matter in hand. However, it is
important to note that in similar set of facts, in the case of Rohtash
Singh Vs. Smt. Ramendri and others (supra) the Supreme Court has
considered such a fact situation and has held that a wife against whom a
decree for divorce has been passed on account of her deserting the
husband is also entitled to claim maintenance under Section 125 of the
Code of Criminal Procedure, and the plea of desertion by wife is not
available to husband.
::: Uploaded on – 27/08/2018 31/08/2018 22:52:49 :::
9 Cri.W.P. 1258-2017.odt14] The Supreme Court has formulated a question in paragraph No.7
which reads as under :
''In this situation, the only question which survives for
consideration is whether a wife against whom a decree for
divorce has been passed on account of her deserting the
husband can claim Maintenance Allowance under Section
125, Cr.P.C and how far can the plea of desertion be treated
to be an effective plea in support of the husband's refusal to
pay her the Maintenance Allowance.''
The Supreme Court has then made following observation inparagraph no. 8 :
''Admittedly, in the instant case, the respondent is a divorced
wife. The marriage ties between the parties do not subsist.
The decree for divorce was passed on 15 th of July, 1995 and
since then, she is under no obligation to live with the
petitioner. But though the marital relations came to an end
by the divorce granted by the Family Court under Section 13
of the Hindu Marriage Act, the respondent continues to be
''wife'' within the meaning of Section 125, Cr.P.C on account of
Explanation(b) to sub-section(1) which provides as under :-'' Explanation- For the purpose of this Chapter-
(a) ........................
(b) '' wife'' includes woman who has been divorced by,
or has obtained a divorce from her husband and has not
remarried.''
15] While concluding, it has answered the question in following words
in paragraph No. 10 :'' As a wife, she is entitled to maintenance unless she
::: Uploaded on - 27/08/2018 31/08/2018 22:52:49 :::
10 Cri.W.P. 1258-2017.odtsuffers from any of the disabilities indicated in Section 125(4).
In another capacity, namely, as a divorced woman, she is
again entitled to claim maintenance from the person of whom
she was once the wife. A woman after divorce becomes a
destitute. If she cannot maintain herself or remains
unmarried, the man who was, once, her husband continues to
be under a statutory duty and obligation to provide
maintenance to her. ''16] It was accordingly held that such a wife who has been divorced
on the ground of desertion can maintain a claim for maintenance, but it
would be available to her only from the date of the decree for
dissolution of marriage. In view of such authoritative pronouncement
of the Supreme Court subsequent to the decision of the Division Bench
in the case of Bhagwan R
aoji
Dale , with respect, the decision of theSupreme Court will have to be followed.
17] Though the decision in the case of Rohtash Singh (supra) was
brought to the notice of the learned Magistrate, he failed to follow the
ratio laid down therein and had wrongly dismissed the application. The
learned Additional Sessions Judge has specifically referred to the
decision in the case of Rohtash Singh (supra) and has rightly held that
the wife was entitled to claim maintenance even if she was a divorced
wife.
::: Uploaded on - 27/08/2018 31/08/2018 22:52:49 :::
11 Cri.W.P. 1258-2017.odt18] The learned Additional Sessions Judge has failed to assign any
reason for arriving at a figure determining the quantum of maintenance,
but the evidence on record is sufficient to justify the quantum.
19] However, he has awarded the maintenance from the date of the
application when in the light of the decision in Rohtash Singh (supra)
the wife would be entitled to claim it only from the date of dissolution
of marriage i.e. 29.04.2013.
20] In the circumstances, in substance the Writ Petition fails to the
extent, it impugns the Judgment and order passed by the learned
Additional Sessions Judge holding the wife entitled to claim
maintenance. However, it needs to be allowed to the limited extent of
modifying the direction of the learned Additional Sessions Judge,
making the right to claim maintenance to be effective from the date of
decree for dissolution of marriage passed in Hindu Marriage Petition
No. 398 of 2010 on 29.04.2013.
The rule is accordingly made absolute in above terms.
(MANGESH S. PATIL, J.)
yogesh
::: Uploaded on - 27/08/2018 31/08/2018 22:52:49 :::
