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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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