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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 295 OF 2017

Rameshwar s/o Sandu Kachkure,
Age 43 years, Occ. Labour, R/o.
Sendra, Tq. Dist. Aurangabad,
at present Gajanan Floor Mill, … Petitioner.
Plot No. 2, Survey No. 69,
Jai-Bhawani Chowk Chowk, CIDCO,
Aurangabad.
VERSUS.
1 The State of Maharashtra.

2 Yamuna w/o Rameshwar Kachkure,
Age 40 years, Occ. Service,
R/o. Dhopteshwar, Tq. Badnapur, … Respondents.
District Jalna.
…
Advocate for Petitioner : Mr. R.R. Mantri.
APP for Respondent No. 1 : Mr. B.A. Shinde.
Advocate for respondent No. 2 : Mr. P.G. Patil, h/f Mr.
A.B. Gaikwad.

CORAM : K. L. WADANE, J.
Reserved on : 13th March, 2018.
Pronounced on : 16th March, 2018.

JUDGMENT

1. Rule. Rule made returnable forthwith. By

consent of the learned counsel for both parties, this

petition is taken up for final hearing.

2. The respondent No. 2 filed an application for

maintenance under the provisions of section 125 of the

Code of Criminal Procedure, bearing Criminal Misc.

Application No. 38/2015 before Judicial Magistrate,

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First Class, Badnapur, District Jalana.

3. It is contended that, respondent No. 2 married

with petitioner on 23.01.1993. Respondent No. 2

residing happily with the petitioner for about two

months, however, thereafter the petitioner started

illtreatment. Therefore, she started to reside with her

parents. It is further contended that, the petitioner

has not made provision of maintenance of respondent No.

2. Furthermore, the petitioner has performed second

marriage.

4. The petitioner appeared in the Trial Court and

submitted his say and has admitted the marriage with

respondent No. 2. However, he has denied almost all

remaining contents of the petition. It is the specific

case of the petitioner that there was divorce between

him and respondent No. 2 on 13.08.2004 and the

respondent No. 2 has relinquished her right of

maintenance and since the date of divorce i.e.

13.08.2004, respondent No. 2 is residing at her parents

house on her own will. So according to petitioner the

respondent No.2 is not entitled to claim maintenance in

view of the divorce and the fact that the parties are

residing separately by mutual consent from the date of

divorce.

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5. Respondent No. 2 filed her oral evidence by way

of affidavit (Exh.11). In addition to that she examined

her cousin brother at Exh. 19. As against this, the

petitioner did not enter into the witness box, however,

examined one witness Sudhakar Bodhgire to prove the

divorce deed (Exh. 14).

6. Besides the oral evidence of the parties,

reliance is placed by the petitioner on documents i.e.

divorce-deed (Exh. 14), 7×12 extracts (Exh. 15 16),

copy of sale-deed (Exh. 17), registration certificate

of two-wheeler vehicle (Exh. 18), to contend that the

respondent No. 2 is having sufficient means to maintain

herself.

7. Considering the evidence on record and after

hearing both the sides, learned Judicial Magistrate

First Class, Badnapur, has allowed the application on

06.08.2016 and awarded amount of maintenance at the

rate of Rs. 1500/- per month from the date of

application i.e. from 11.03.2015 together with costs of

Rs. 2000/-. That order was assailed before the learned

Sessions Judge, Jalna by filing Criminal Revision

Application No.113/2016. The same was rejected after

hearing both the sides.

8. I have heard the arguments of Mr. Mantri,

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learned counsel for petitioner and Mr. Patil, h/f Mr.

Gaikwad, learned counsel for respondent No. 2.

9. Mr. Mantri, learned counsel, during the course

of arguments submitted that after the marriage, the

respondent No. 2 resided with the petitioner for a few

months and thereafter she left the house of the

petitioner and she was started to reside at her parents

house and she is looking after her parents. Mr. Mantri,

learned counsel, further argued that there was divorce

between the parties and its deed was registered before

the Sub-Registrar. At the time of execution of the

divorce-deed the respondent No. 2 relinquished her

right of maintenance. Therefore, now the respondent

No. 2 is not entitled to claim any maintenance. He

further submitted that since the petitioner and the

respondent No. 2 are residing separately, with mutual

consent, since the date of the divorce, therefore, the

respondent No. 2 is not entitled to claim maintenance

in view of the provision of Section 125 sub-section 4

of the Code of Criminal Procedure, which runs as

follows :

“No wife shall be entitled to receive an
[allowance for the maintenance or the interim
maintenance and expenses of proceedings, as the
case may be,] from her husband under this

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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.”

10. As against this, Mr. Patil, learned counsel for

respondent No. 2 argued that the execution of

divorce-deed has been specifically denied by the

respondent No. 2 in her oral evidence. Mr. Patil,

learned counsel, further argued that the alleged

divorce-deed is not legal because it was not as per the

Law. Therefore, it cannot be treated as valid divorce

between the parties. Mr. Patil, learned counsel further

argued that the right of maintenance cannot be

relinquished by executing a divorce-deed. He further

argued that even looking to the contents of divorce-

deed (Exh. 14) there is no reference that some

permanent alimony has been given to respondent No. 2

and therefore respondent No. 2 has relinquished the

right of future maintenance.

11. From the scrutiny of record it appears that,

the respondent No. 2 in her oral evidence i.e. in para

No. 5 of the affidavit it has been specifically deposed

that petitioner had taken respondent No. 2 in the

office of Sub-Registrar Badnapur and the petitioner

posed that he is purchasing some landed property in the

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name of respondent No. 2, therefore, respondent No. 2

was asked to sign on some documents. Subsequently, she

came to know that the petitioner has registered the

divorce-deed, which according to respondent No. 2 is

illegal.

12. Mr. Mantri, learned counsel for the petitioner in

support of his contention has relied upon the observations

in case reported in 2003 Bom.C.R. (Cri.) 1122 ( Popat

Kashinath Bodke V/s. Kamalbai Popat Bodke others), in

which it is observed in para No. 3 that:

“there may be debate in context with the said
document and its value as a document of divorce.
There may be 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 the 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 Kamalbai were
separating from each other by mutual consent.”

13. So looking to the facts and observation of

above case, it appears that the above case was

pertaining to the facts that the husband and wife were

residing separately by mutual consent.

14. Mr. Mantri, further relied upon the

observations in Criminal Writ Petition No. 403/2009

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(Bhaskarrao Uttamrao Patil ( Chopde) V/s. Sau. Sumanbai

@ Kokilabai Bhaskarrao Patil (Chopde), wherein it is

observed in para No. 3 that :

“The only question involved in the present case
is whether the respondent-wife is disentitled to
claim maintenance in terms of sub-section (4)
of Section 125 of the Criminal Procedure Code.
The petitioner relied upon the consent terms
dated 24.08.1979 at Exhibit 39, and this was
disputed by the respondent-wife. The Trial Court
holds that the consent terms are proved, whereas
the Revisional Court holds that the consent
terms become unenforceable in view of Section
5(1) of Hindu Marriage Act, 1955 read with
Section 23 of the Indian Contract Act, 1872.”

Again, it is a case relating to the fact that

wife was living separately from husband by mutual

consent and without sufficient cause or reason.

15. Mr. Mantri, further relied upon observations in

case reported in 2005 (2) Bom. C.R. (Cri) 776 (Gajanan

Pandurang Solanke Vs. Sheela Gajanan Solanke others)

wherein it is held that “wife who chooses to stay

separate cannot claim maintenance under section 125 of

Cri.P.C.”

16. Mr. Mantri, learned counsel, further relied

upon the observations in case reported in 1988 (3) Bom.

C.R. 343 (Shrawan Sakharam Ubhale V/s. Durga (Sau.) w/o
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Shrawan Ubhale others) wherein it is observed that :

“That a divorcee is entitled to claim
maintenance under section 125 Cri.P.C. admits of
no debate. The term wife used in section 125(1)

(a) includes divorcee who is not remarried,
under Explanation (b) to sub-section (1) of
section 125. Therefore, the fact of mere divorce
without anything more is no defence to the claim
for maintenance allowance by a wife. Crucial
question is, is she entitled to maintenance even
if she chooses to live separately by mutual
consent and voluntarily surrenders her right to
maintenance. Combined reading of the scheme of
section 125 and section 127 Cri.P.C. in general
and sub section (4) of section 125 and Clause

(c) of sub-section (3) of section 127 in
particular, would clearly provide an answer
against maintainability of a claim for
maintenance allowances in such circumstances.
Sub-section (4) of section 125 Cri.P.C. clearly
mentions that no wife shall be entitled to
receive allowance from her husband inter alia,
if they are living separately by mutual consent.
Clause (c) of sub-section (3) of section 127
mentions that order of maintenance will have to
be cancelled in case the woman has obtained a
divorce from her husband and that she had
voluntarily surrendered her rights to
maintenance after her divorce. In this
background it is difficult to sustain the view
taken by the learned Sessions Judge that legal
right of maintenance cannot be given up. It is
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pertinent to notice that contracting out of the
right under section 125 Cri.P.C. is not
prohibited.”

The crucial question before the Court was

whether the wife chooses to live separately by mutual

consent and voluntarily is not entitled to claim

maintenance and surrender her right to maintenance can

claim the maintenance and that question is answered in

negative.

17. Looking to the facts and observations of all

the above referred cases, it appears that all the cases

were pertaining to the fact that wife and husband were

residing separately by mutual consent. In the present

case whether the respondent No. 2 and the petitioner

are residing separately by mutual consent or otherwise

and to determine this material aspect it is material

to refer the contents of the alleged divorce-deed

(Exh. 14).

18. On perusal of the contents of the alleged

divorce-deed (Exh. 14) it appears that it is mentioned

in divorce-deed that the petitioner and respondent

No. 2 resided for about six months and thereafter

quarrel started between them consistently on account of

trifle reasons. Therefore, the respondent No. 2 went

to reside her parents house. Further it is mentioned
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in the deed that the petitioner had not paid any amount

of maintenance. So on plain reading of the contents of

the divorce-deed (Exh. 14) it appears that, the

respondent No. 2 was constrained to reside separately

at her parents house due to the consistent quarrel

between her and the petitioner. So looking to the

aforesaid contents it cannot be said that the husband

and wife are residing separately by mutual consent.

More so, when the respondent No. 2 has denied the

execution of the deed of divorce itself. The respondent

No. 2 has denied the execution of such deed and as

referred earlier the validity or legality of that

document (divorce-deed) is not a question which is to

be determined here.

19. Mr. Patil, learned counsel for respondent No. 2

has relied upon the observations in case reported in

2013 Cri.L.J. 3593 (Ramesh Dagaa Landge Vs. Sau.

Sindhubai Ramesh Landge and others) in which reference

of the case reported in (2005 (3) Mh.L.J. 137), Bombay

High Court (Tajaswini d/o Anandrao Tayade Vs.

Chandrakant Kisanrao Shirsat), wherein it is observed :

“that if as per the law, marriage cannot be
dissolved unless there is a decree of divorce
passed by the competent Court, such consent
document of divorce cannot dissolve the
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marriage. This Court further held that such
document cannot be used to hold that there has
been relinquishment of right of maintenance.
Thus, this Court held that the facts of
Tejaswini’s case cited (supra) were different
from the case of Popat cited (supra) decided
already by this Court. It is already observed
that in view of the object behind the provisions
and the nature of defences available to the
husband, each case needs to be decided on the
facts of that case.”

20. Lastly, Mr. Patil, learned counsel for

respondent No. 2 has relied upon the observations in

case of Special Criminal Application No. 174/2008

(Narendrabhai Shah V/s. State of Gujrat another).

The facts of the cited case are identical with the

facts of the present case wherein it is observed that :

“18.5 Not only catering of decisions
discussed hereinabove clearly and unequivocally
insisted upon the right of the wife who is in a
destitute condition to get maintenance from her
husband and in the wake of compromise pursis
entered into by and between the parties under
Order XXIII Rule 3 of the Code of Civil
Procedure, 1908, the Court has rightly held that
the wife cannot be deprived of her legal dues if
otherwise she is found to be in a destitute
condition.

18.6 It is to be recognised that no amount

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has been paid towards permanent alimony or
otherwise to the respondent No. 2-wife of the
petitioner herein when the pursis of compromise
was finalised. Although it is claimed that the
petitioner has been one of the witnesses at the
time of purchase of the property by the
respondent No. 2-wife, the amount of Rs.
25,000/-paid towards consideration of such
property was parted with by the petitioner
herein. In absence of any proof to that effect,
such contention cannot be upheld. Much dispute
is raised with regard to the validity of the
marriage. It is also contended that no essential
rites as per the Hindu religion have been
performed and, therefore, in absence of those
rites, the Hindu marriage cannot be held to be a
valid marriage. Had there been no legal
marriage, which was non-est or valid ab initio,
the petitioner could not have preferred Civil
Suit No. 229 of 1980 for getting declaration
against the respondent No. 2 and entered into a
compromise so incidentally. It is a different
aspect altogether that the wife has challenged
such a decree before the competent Civil Court.
The performance of the Court conducting the
matter under section 125 of the Code cannot be
dependent upon the outcome of such Civil Suit
when otherwise the registration of marriage of
the parties at Nadiad in the year 1977 is also
evident from the documents produced on record.
With nothing coming on record to indicate any
amount of maintenance having been given to the

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respondent No. 2 by the petitioner, both i.e.
the JMFC, Kapadwanj and Additional Sessions
Judge, Kheda, rightly held that clauses 4 and 6
of the consent terms arrived at between the
parties are contrary to the provisions of
section 23 of the Indian Contract Act. As
rightly held by the JMFC, Kapadwanj, that the
agreement which is supposed to be against the
public policy is not enforceable in the Court of
law in the given set of circumstances. Any
clause in the agreement that the wife will not
be entitled to claim maintenance is against the
provisions of section 125 of the Code and such
relinquishment of right to maintenance by wife
cannot preclude the wife to claim maintenance
under section 125 of the Code. As mentioned
hereinabove, the very object of the said
provision is to prevent destitution and to
maintain an orderly society. When the act of the
petitioner is in the realm of illusory
maintenance, the Courts have rightly held that
no defence can be sustained.”

21. Mr. Patil, learned counsel for respondent No.

2 further points out that the decision of the Gujrat

High Court cited (supra) was challenged before the Apex

Court and the husband/petitioner in that case has

withdrawn the Special Leave Petition and therefore, the

learned counsel has contended that the finding recorded

by the Gujrat High Court in case cited (supra) in this

context attains finality. Therefore, no contrary view

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can be taken, than the view taken by the Gujrat High

Court.

22. On perusal of the facts and circumstances of

the case and the law discussed by the various High

Courts, it appears that, respondent No. 2 is entitled

for the maintenance amount from the petitioner inspite

of the alleged relinquishment of right of maintenance

in the alleged divorce-deed.

23. Apart from the above facts, it is not

established by the petitioner that the respondent No. 2

is residing separately with mutual consent, more

particularly, on her own wish. To prove this fact the

petitioner did not enter into witness box.

24. In view of the above, the Writ Petition is

liable to be dismissed. Accordingly it is dismissed

with no costs.

25. Rule is discharged.

(K. L. WADANE, J.)

mkd

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