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Junesh S/O Kashiram Talmale And … vs Mrunal Divorcee Of Junesh Talmale on 22 December, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.

CRIMINAL REVISION APPLICATION (REVN) NO. 46 OF 2016

Mrunal Divorcee of Junesh Talmale,
Mrunal d/o late Babanrao Ghate,
aged 33 years, Occupation Nil, R/0
C/o Chandubhau Dudhe, Kinkhede
Nagar, Near Hanuman Mandir, Behind
Bohrao Compound, Binaki Mangalwari,
Nagpur. … APPLICANT

VERSUS

1. Junesh s/o Kashiram Talmale,
aged 34 years, Occupation Service,

2. Sharda w/o Kashiram Talmale,
aged 52 years, Occupation Nil,

3. Kashiram s/o Lahanuji Talmale,
aged 61 years, Occupation Retired,

4. Rakesh s/o Kashiram Talmale,
aged 30 years, Occupation Nil.

All R/o Baba Mastan Shah Ward,
Bairagiwada, In front of Dr. Turaskar’s
Nursing Home, Bhandara. … RESPONDENTS

….
Shri A.H. Jamal, Advocate for the applicant.
Ms Manju Ghatode, Advocate for the respondents.
….

WITH
CRIMINAL WRIT PETITION (WP) NO. 1023 OF 2015

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1. Junesh s/o Kashiram Talmale,
aged 34 years, Occupation Service,

2. Sharda w/o Kashiram Talmale,
aged 51 years, Occupation Nil,

3. Kashiram s/o Lahanuji Talmale,
aged 61 years, Occupation Retired,

4. Rakesh s/o Kashiram Talmale,
aged 30 years, Occupation Nil.

All R/o Baba Mastan Shah Ward,
Bairagiwada, In front of Dr. Turaskar’s
Nursing Home, Bhandara. … APPLICANTS

VERSUS

Mrunal Divorcee of Junesh Talmale,
Mrunal d/o late Babanrao Ghate,
aged 33 years, Occupation Nil, R/0
C/o Chandubhau Dudhe, Kinkhede
Nagar, Near Hanuman Mandir, Behind
Bohrao Compound, Binaki Mangalwari,
Nagpur. … RESPONDENT

….
Ms Manju GhatodE, Advocate for the petitioners.
Shri A.H. Jamal, Advocate for the respondent.
….

CORAM : M.G. GIRATKAR, J.

DATE OF RESERVING THE JUDGMENT : 13TH DECEMBER, 2018.

DATE OF PRONOUNCING THE JUDGMENT : 22ND DECEMBER, 2018.

ORAL JUDGMENT :

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Heard. Admit. Heard finally with the consent of the

learned Counsel appearing on behalf of the respective parties.

2. Both the matters are against the judgment and order dated

05.12.2011 in Miscellaneous Criminal Application No. 2194 of 2010

passed by learned Judicial Magistrate, First Class, Court No.7, Nagpur

and the judgment and order in Criminal Appeal No. 172 of 2014, dated

03rd September, 2013 passed by the learned Additional Sessions Judge-

2, Nagpur.

3. The facts in brief, which give rise to filing of the present

matters, are as under.

That the wife Mrunal Talmale had filed Miscellaneous

Criminal Application No. 2194 of 2010 under the provisions of

Protection of Women against Domestic Violence Act, 2005 (hereinafter

referred as DV Act). The said application was dismissed by the JMFC.

It was partly allowed by learned Additional Sessions Judge on

03.09.2015 and granted maintenance of Rs.1500/- per month to the

wife.

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4. During the pendency of DV Act proceedings, both the

parties filed mutual divorce petition bearing Petition No. A-642 of

2012 before the family Court. Mutual divorce was granted by family

Court and it was directed to the husband to pay permanent alimony of

Rs.4,32,000/- to the wife. The said decision of family Court was

challenged in First Appeal No. 417 of 2014 before this Court. Vide

order dated 07.05.2014, this Court set aside the order of family Court

granting permanent alimony of Rs.4,32,000/- towards maintenance

and granted maintenance of Rs.1,500/- per month. The said order was

challenged before the Hon’ble Supreme Court by way of SLP. The said

SLP came to be dismissed.

5. Shri Jamal, learned Counsel appearing on behalf of the wife

has submitted that the wife is entitled for maintenance till her second

marriage.

6. Ms Manju Ghatode, learned Counsel appearing on behalf of

the husband has submitted that maintenance is to be granted as per

the order of Additional Sessions Judge, Nagpur in Criminal Appeal No.

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172 of 2014 from 22.12.2010 to 25.11.2013.

7. After hearing learned Counsel appearing on behalf of the

respective parties, there is no dispute that both the parties have filed

mutual divorce petition. Divorce was granted with permanent alimony

of Rs.4,32,000/- by family Court. The said order came to be modified

by this Court in First Appeal No. 417 of 2014 and granted Rs.1,500/-

per month. Therefore, the order of maintenance granted by Additional

Sessions Judge comes to an end. There is no dispute that wife has

performed second marriage on 19th April, 2018. The Family Court

Appeal No. 305 of 2014 came to be decided on 10 th July, 2017 by this

Court and following order is passed.

“For the reasons aforesaid, the family Court appeal is partly
allowed. The judgment of the Family Court as far as it
directs the husband to pay a sum of Rs.4,32,000/- to the
wife in four equal monthly installments w.e.f. 1.1.2014 is
set aside. The husband is directed to pay a sum of
Rs.1,500/- to the wife every month towards maintenance.”

8. There is no dispute that the husband and wife both have

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performed their second marriages. Husband is having children from

his second wife. Now the dispute is whether the wife is entitled for

maintenance up to her second marriage. Section 125 of the Code of

Criminal Procedure is very clear. It deals with maintenance to wives,

children and parents. It reads as under :-

“125. Order for maintenance of wives, children and
parents. – (1) If any person having sufficient means
neglects or refuses to maintain –

(a) …
(b) …
(c) …
(d) …
Explanation .
(b) “wife” includes a woman who has been

divorced by, or has obtained a divorce from, her husband
and has not remarried.

This provision clearly shows that even divorced wife is entitled for

maintenance. There is no dispute that mutual divorce is granted by

family Court in Petition No. A-642 of 2012. Therefore, she is entitled

for maintenance. Even as per the judgment of Family Court Appeal

No. 305 of 2014 dated 10th July, 2017, husband is directed to pay

maintenance of Rs.1,500/- per month.

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9. Now, the wife has performed second marriage on

19.04.2018. Whether she is entitled to maintenance till her second

marriage is a disputed question. Learned Counsel for the husband

opposes the same; whereas learned Counsel for the wife has submitted

that she is entitled for maintenance up to her second marriage.

Section 127 of the Code of Criminal Procedure reads as under :-

“127. Alteration in allowances – (1) On proof of a
change in the circumstances of any person, receiving,
under section 125 a monthly allowance for the
maintenance or interim maintenance, or ordered under
the same section to pay a monthly allowance for the
maintenance, or interim maintenance, to his wife, child,
father or mother, as the case may be, the Magistrate may
make such alteration, as he thinks fit, in the allowance
for the maintenance or the interim maintenance, as the
case may be.

(2) …

(3) Where any order has been made under

section 125 in favour of a woman who has been divoced
by, or has obtained a divorce from, her husband, the
Magistrate shall, if he is satisfied that –

(a) the woman has, after the date of such
divorce, remarried, cancel such order as from the date of
her remarriage;

10. It is clear from Section 127(3)(a) of the Code of Criminal

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Procedure that the wife is entitled for maintenance of Rs.1,500/- per

month as per the directions of this Court in Family Court Appeal No.

305 of 2014 dated 10th July, 2017 till her second marriage. Therefore,

the applicant/wife Mrunal is entitled for maintenance till her

remarriage on 19.04.2018. Hence, the following order.

Criminal Revision Application No. 46 of 2016 is partly

allowed. Writ Petition No. 1023 of 2015 is dismissed. Husband

Juneshkumar Kashiram Talmale shall pay maintenance to his divorced

wife Mrunal as per the order dated 10 th July, 2017 in Family Court

Appeal No. 305 of 2014 at the rate of Rs.1,500/- per month till her

remarriage dated 19.04.2018. Accordingly, both the matters are

disposed of.

JUDGE

*rrg.

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