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Smt. Abhilasha D/O. Uprendra … vs Mr. Nilesh S/O. Deepak Meshram And … on 9 February, 2018

cwp.799.17.jud 1

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

CRIMINAL WRIT PETITION NO.799 OF 2017

Petitioners : 1] Smt. Abhilasha d/o Uprendra Kamble,
(earlier known as Su. Abhilasha
W/o Nilesh Meshram), aged about 37 years,
Occupation – Nil.

2] Kumari Harshini alias Mugdha
D/o Nilesh Meshram, aged about 7 years,
Occupation – Nil as students,
through her natural guardian Mother
Smt. Abhilasha d/o Uprendra kamble
(earlier known as Sau. Abhilasha
W/o Nilesh Meshram),
Both R/o C/o Upendra Kamble,
In front of Koche Gas Agency,
Ambedkar Ward, Bhandara.

— Versus —

Respondent : 1] Mr. Nilesh s/o Deepak Meshram,
Aged about 40 years, Occupation : Service,
R/o Misal Layout, Opp. Vaishali School,
Bhim Chowk, Jaripatka, Nagpur.

2] The State of Maharashtra.

———————
Shri K.B. Zinjarde, Advocate for the Petitioners.
Shri H.K. Lingayat, Advocate for Respondent No.1.
———————
CORAM : S.B. SHUKRE, J.
DATE : 9th FEBRUARY, 2018.

ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally by

consent.

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02] The only issue arises for consideration is, as to whether

or not a divorcée woman, whose marriage has been dissolved on

the ground of her cruelty to the husband, is entitled to receive

maintenance under Section 125 of the Code of Criminal Procedure

(for short ‘Cr.P.C.’). The learned Magistrate, who granted

maintenance answered the question as in the affirmative, while the

learned Additional Sessions Judge, who allowed the revision

application filed by the respondent answered the question as in the

negative and in favour of the respondent-husband. This question

has assumed importance because the marriage of the petitioner

and respondent no.1 was dissolved by granting a decree of divorce

during pendency of the revision application and this event, it is

seen from the order of the learned Additional Session Judge, which

is impugned in this petition, weighed on the mind of the learned

Additional Sessions Judge. By relying upon the case of Deb

Narayan Halder vs. Smt. Anushree Halder, reported in AIR 2003 SC

3174, the learned Additional Sessions Judge found that as the

petitioner was cruel to respondent no.1 and the decree of divorce

has also been granted on this ground, the petitioner would not be

entitled to receive any maintenance amount from her husband i.e.

respondent no.1. The learned Additional Sessions Judge did not

record any categorical finding that the ingredients of Section 125 of

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the Cr.P.C. have not been shown to be fulfilled by the petitioner so

as to dis-entitle her to any order of maintenance under this Section.

03] The learned Counsel for respondent No.1 submits that the

conclusion so arrived at by the learned Additional Sessions Judge is

correct and consistent with the facts established on record. He also

submits that on the other hand, the learned Magistrate recorded

perverse findings. The learned Counsel for the petitioners disagrees.

He submits that basically there were no perverse findings recorded by

the learned Magistrate and that it were the learned Additional

Sessions Judge, who made perverse conclusions by ignoring the well

settled principles of law.

04] On going through the order passed by the learned

Magistrate granting maintenance of Rs.10,000/- per month in all

(Rs.6,000/- p.m. to petitioner no.1 and Rs.4,000/- p.m. to petitioner

no.2) and the order passed by the learned Additional Sessions Judge, I

find that there is great substance in the argument of the learned

Counsel for the petitioners and no merit in the submission of the

learned Counsel for respondent no.1.

05] Explanation to sub-section 1 of Section 125 of Cr.P.C.

clarifies that “wife” includes a woman who has been divorced by, or

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has obtained a divorce from, her husband and has not remarried. The

explanation does not distinguish between a divorcée woman found

guilty of cruelty and the other divorcée woman. Therefore, every

woman, who is divorcée, would fall within the scope and ambit of the

explanation to sub-section 1 of Section 125 of Cr.P.C. In the case of

Deb Naayan Halder also, I could not come across any observation of

the Hon’ble Apex Court to the effect that a divorcee woman, who has

been granted divorce on the ground of her cruelty to the husband is

dis-entitled to receive maintenance under Section 125 of Cr.P.C. The

learned Counsel for respondent no.1 also graciously concedes this

fact. I do not understand as to how the learned Additional Sessions

Judge could have culled out from this case something, which was not

it’s ratio. Be that as it may, the fact remains that the learned

Additional Sessions Judge has committed manifest illegality by holding

that a divorcée woman, who has been granted divorce on the ground

of her cruelty to her husband is not entitled to receive maintenance.

In fact, the law is that and it is a settled one, even such a woman is

entitled to receive maintenance, which has been rightly found by the

learned Magistrate when he granted overall maintenance of

Rs.10,000/- to both the petitioners.

06] On the quantum of maintenance, I must say, the learned

Magistrate has rightly taken into consideration the interim

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maintenance granted by the Family Court and by a specific finding

recorded to that effect, adjusted the amount against the final amount

of maintenance that he granted while allowing application of the

petitioners under Section 125 of Cr.P.C.

07] In the result, I find merit in the petition and it deserves to

be allowed.

08] The petition is allowed. The impugned order passed by

the Additional Sessions Judge is quashed and set aside and the order

passed by the learned Magistrate is confirmed.

Rule is made absolute in the above terms.

(S.B. Shukre, J.)

*sdw

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