SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Dnyaneshwar S/O. Eknath Kachre vs Sunita W/O. Dnyaneshwar Kachre on 24 August, 2018

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.odt

also 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.odt

14] 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 in

paragraph 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.odt

suffers 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 the

Supreme 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.odt

18] 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 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation