2013 ALL MR (Cri) 3252
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T.V. NALAWADE, J.

Ramesh Dagaa Landge Vs. Sau. Sindhubai Ramesh Landge & Ors.

Criminal Writ Petition No. 4 of 2011

13th June, 2013

Petitioner Counsel: Mr. AMIT S. SALVE
Respondent Counsel: Mr. S.U. CHAUDHARI

(A) Criminal P.C. (1973), Ss.125(3), 125(4), 125(5) - Maintenance - Grant of - Petition against - Execution of 'Pharkat Patra' as customary means of divorce - Even then husband cannot avoid liability in view of provisions of S.125 - Divorce is a sufficient cause for wife to live separately.

The 'Pharkat Patra' produced in the court is treated as the proof of customary divorce. In that case also, in view of Sec. 125 of the Code of Criminal Procedure, the husband cannot avoid the liability. If there was the divorce under the document, the husband cannot take defense that the wife has been living separate without sufficient cause. If the wife was already living separate there was sufficient cause for her and so this document cannot help the husband to avoid the liability. 1990 Mh.LJ 418, 2005 ALL MR (Cri) 314, 2003 ALL MR (Cri) 1094, 2003 ALL MR (Cri) 868 Ref. to. [Para 11]

(B) Criminal P.C. (1973), S.125 - Grant of maintenance to wife - Petition against - Customary divorce between parties - Document in question i.e. 'Pharkat Patra' titled as divorce document and not relinquishment deed - Document showing no specific relinquishment of right of maintenance, though wife had undertaken not to make any claim against husband - Also no evidence to show that wife was living separate without sufficient cause - Under facts and circumstance of the case, husband cannot avoid liability to pay maintenance.

In the present case there was no specific relinquishment of right of maintenance though the wife had undertaken not to make any claim against the husband. This document is titled as divorce document and not as relinquishment deed. The document does not show that the wife was living separate without any sufficient reason, from this document no blame could be attributed to the wife for a separate residence and the document shows that separate residence was not under mutual consent or due to the fault of the wife. On the contrary, it is shown that there was no alternative before the wife than to live separate and then husband tried to obtain divorce by making promise of making provision for the maintenance of wife and children. Though husband pleaded that he had made such provision but same was not substantiated by adducing convincing evidence.

Further, 'Pharkat Patra' produced in the court, if treated as a proof of customary divorce, in view of the facts of the case, it cannot be said that there was relinquishment of right of maintenance. Moreover no inference could be drawn for such relinquishment. Further, if there was no divorce obtained under the document then no question arises regarding relinquishment of the right of maintenance.

1996 (1) SCC 39 Rel. on. 1998 ALL MR (Cri) 1345 Disting. [Para 10,11]

(C) Criminal P.C. (1973), S.125 - Maintenance - Grant of - Appreciation of evidence - Depends on facts and circumstances of each case.(Para 9)

(D) Criminal P.C. (1973), S.125 - Maintenance - Object of S.125 - Is to achieve social purpose to prevent vagrancy and destitution - Object is also to provide quick remedy by using summary procedure - This right is given on the basis of the natural and fundamental duties of the man to maintain his wife and children. 1991 (2) SCC 375, 2005 ALL MR (Cri) 1309 (S.C.) Ref. to.(Para 6)

Cases Cited:
Sadashiv Pillai Vs. Vijayalakshmi, 1987 Cri. L.J.765 (1) [Para 3]
Vimala (K.) Vs. Veeraswamy (K.), 1991 (2) SCC 375 [Para 6]
Savitaben Somabhai Bhatiya Vs. State of Gujarat and others, 2005 ALL MR (Cri) 1309 (S.C.)=AIR 2005 SC 1809 [Para 6]
Shrawan Sakharam Ubhale Vs. Durga Sakharam Ubhale, 1990 Mh.L.J. 418 [Para 7,8]
Gajanan s/o Pandurang Solanke Vs. Sheela Gajanan Solanke and others, 2005 ALL MR (Cri) 314=2005(1) Mh.L.J. 348 [Para 7,8]
Vitthal Hiraji Jadhav Vs. Harnabai Vitthal Jadhav and another, 2003 ALL MR (Cri) 1094=2003 (4) Mh.L.J 23 [Para 7]
Popat Kashinath Bodke Vs. Kamalabai Popat Bodke and others, 2003 ALL MR (Cri) 868=2003 (2) Mh.L.J. 608 [Para 7,8,9]
Tajaswini d/o Anandrao Tayade and another Vs. Chandrakant Kisanrao Shirsat and another, 2005 ALL MR (Cri) 2173=2005 (3) Mh.L.J. 137 [Para 9]
Smt.Sushilabai w/o Ravan Patil Vs. Ravan Elji Patil and another, 1998 ALL MR (Cri) 1345=1999 Bom.C.R. (Cri.) 74 [Para 10]
Satyabhambai w/o. Balasaheb Suryawanshi Vs. Balasaheb s/o Namdevrao Suryawanshi, 2010 ALL MR (Cri) 189=2009 (0) BCI 665 [Para 10]
Gurmit Kaur Vs. Surjit Singh Alias Jeet Singh, 1996 (1) SCC 39 [Para 11]


JUDGMENT

JUDGMENT :- The petition is filed to challenge the judgment and order of Criminal Revision Application No.29 of 2008, which was pending in the Court of Additional Sessions Judge, Shahada. The Sessions Court has set aside the judgment and order of J.M.F.C. by which the maintenance was refused to Respondent No.1 under Section 125 of the Code of Criminal Procedure. The Sessions Court has awarded maintenance at the rate of Rs.1,000/- per month in favour of Respondent No.1.

2. Both the sides are heard.

3. The parties are Hindu by religion. Their marriage took place in the year 1992. They have two issues out of this marriage. In the year 2005, maintenance proceedings was filed under Section 125 of the Code of Criminal Procedure by present Respondents, but it was dismissed for non-prosecution, due to absence of the wife. The present proceedings came to be filed in the year 2007. The J.M.F.C. granted maintenance to two issues, but refused the maintenance to the wife by holding that, she has been living separate without sufficient reason and she has also agreed not to claim the maintenance. The husband took the defence that one document of divorce named as "Pharkat Patra" was executed by the parties and due to the said document, the wife is not entitled to get the maintenance. It is the case of the wife that there was an agreement to make provision of residence and maintenance for the wife and the issues, but that part of agreement was never complied with. The husband has contended that he had acted as per the agreement and he had given house and cash amount to the wife and issues. The Sessions Court has held that though there was such agreement, that agreement is not enforceable in view of the provisions of the Contract Act. The Sessions Court has relied on the case of [1987 CRI. L. J. 765(1), Kerala High Court (Sadashiv Pillai Vs. Vijayalakshmi).

4. The execution of the document titled as "Pharkat Patra", divorce deed, is not disputed. There is a mention in the document that in the caste of the parties, there is a custom of such divorce. The submissions made in this proceedings show that the husband is not interested to prosecute his defence that under the document, divorce was taken by the parties. Submissions were made for the husband that there was parallel oral agreement under which some arrangements were made for making provisions of maintenance for the wife and issues. Evidence is according given by the parties.

5. Two different defences are taken by the husband viz, i) there was relinquishment of maintenance by the wife and ii) that the wife has been living separate without sufficient reason or by mutual consent and so, she is not entitled to get maintenance. Learned counsel for both the parties have relied on some reported cases. The provision with regard to defence taken by the husband can be found in proviso No.2 of Section 125 (3), Sections 125(4) and 125(5) of the Code of Criminal Procedure.

"Proviso 2 of Section 125(3) :

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with them.

Section 125 (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this 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.

Section 125 (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

In Section 125(1) (Explanation) (b), it is made clear that the term "wife, used in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

Provision of Section 127(2)(c) providing for cancellation of maintenance order is also relevant in this regard and it is as follows:

"(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance after her divorce, cancel the order from the date thereof.

6. In the case reported as [1991 (2) SCC 375], (Vimala (K.) Vs. Veeraswamy (K.)) and [AIR 2005 Supreme Court 1809] : [2005 ALL MR (Cri) 1309 (S.C.)], (Savitaben Somabhai Bhatiya Vs. State of Gujarat and others), the Apex Court has discussed the object behind the aforesaid provisions of the Code of Criminal Procedure and has made some observations on the approach, which needs to be adopted by the Courts at the time of appreciation of evidence in such cases. The object is to achieve social purpose to prevent vagrancy and destitution. The object is also to provide quick remedy by using summary procedure. This right is given on the basis of the natural and fundamental duties of a man to maintain his wife, children and parents, who are unable to maintain themselves. While appreciating the evidence given by the parties, the Court is expected to keep the aforesaid objects in mind and also the condition of the woman in Indian society. In view of the nature of defences available to the husband in the aforesaid provisions, each case needs to be decided on the basis of the facts and circumstances of that case.

7. In view of the facts of the case, the learned counsel for the Petitioner relied on the observations made in the following reported cases.

i. [1990 MH. L.J. 418], Bombay High Court, (Shrawan Sakharam Ubhale Vs. Durga Sakharam Ubhale);

ii. [2005(1) Mh. L.J. 348] : [2005 ALL MR (Cri) 314], Bombay High Court, (Gajanan s/o Pandurang Solanke Vs. Sheela Gajanan Solanke and others);

iii. [2003 (4) Mh. L.J 23] : [2003 ALL MR (Cri) 1094], Bombay High Court, (Vitthal Hiraji Jadhav Vs. Harnabai Vitthal Jadhav and another);

iv. [2003 (2) Mh. L.J. 608] : [2003 ALL MR (Cri) 868], Bombay High Court, (Popat Kashinath Bodke Vs. Kamalabai Popat Bodke and others).

8. The facts of Popat's, [2003 ALL MR (Cri) 868] case cited (supra) show that in that case also, a document "Pharkat Patra" was executed and on the basis of that document, the Court held that the parties were living separate by mutual consent and so in view of the aforesaid provisions of Code of Criminal Procedure, the wife was not entitled to get the maintenance. In the case of Shrawan cited (supra), two separate documents like divorce deed and consent deed were executed. It was held that the wife had started living separate by mutual consent under the documents and she had surrendered right of maintenance. Similar facts were there in the case of Gajanan, [2005 ALL MR (Cri) 314] cited (supra). In other two reported case, the High Court held that the parties were living separate by mutual consent under similar document and so, the wife was not entitled to get maintenance.

9. The case of Popat, [2003 ALL MR (Cri) 868] cited (supra) was considered by this Court in the case reported as [2005 (3) Mh.L.J. 137] : [2005 ALL MR (Cri) 2173], Bombay High Court (Tajaswini d/o Anandrao Tayade and another Vs. Chandrakant Kisanrao Shirsat and another). In this case, this Court has 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 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, [2005 ALL MR (Cri) 2173] case cited (supra) were different from the case of Popat, [2003 ALL MR (Cri) 868] 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.

10. The facts of present case are different from the aforesaid reported cases. Careful perusal of the said document in this case shows that there was no specific relinquishment of right of maintenance, though the wife had undertaken not to make any claim against the husband. This document is titled as divorce document and not as relinquishment deed. The document does not show that the wife was living separate without any sufficient reason. From this document, no blame can be attributed to the wife for a separate residence and the document shows that the parties were already living separate and the separate residence was not under mutual consent or due to the fault of the wife. On the contrary, the rival cases and the document show that there was no alternative before the wife than to live separate and then the husband tried to obtain divorce by making promise of making provisions for the maintenance of wife and the children. The husband has come with a case that he had made such provision, but there is no convincing evidence on this defence of the husband. The reported case of [1999 Bom.C.R. (Cri.) 74] : [1998 ALL MR (Cri) 1345], Bombay High Court, (Smt. Sushilabai w/o Ravan Patil Vs. Ravan Elji Patil and another), cannot be of use in the present facts. In the present case, no amount was paid under the document and there is no convincing evidence on the payment of consideration. Reliance was placed by the learned counsel for the Respondents on the case reported as [2009 (0) BCI 665] : [2010 ALL MR (Cri) 189] Aurangabad Bench of Bombay High Court, (Satyabhambai w/o. Balasaheb Suryawanshi Vs. Balasaheb s/o Namdevrao Suryawanshi). The facts of this case were somewhat similar to the preset case. In this case, this Court has held that no inference of divorce can be drawn from such document and further if the parties were already living separate, it cannot be held that under the document, they had started living separately.

11. If the "Pharkat Patra" produced in this Court is treated as the proof of customary divorce, in that case also, in view of the aforesaid provisions of the Code of Criminal Procedure, the husband cannot avoid the liability. If there there was the divorce under the document, the husband cannot take defence that the wife has been living separate without sufficient cause. If the wife was already living separate, there was sufficient cause for her and so, this document cannot help the husband to avoid the liability. It is not possible to draw inference that the parties are already living separate by mutual consent or the wife was living separate without sufficient reason. It is already observed that in view of the facts of the case, it cannot be inferred that there was relinquishment of right of maintenance. If there was no divorce obtained under the document, then in view of the aforesaid provisions, it needs to be held that there was no question of relinquishment of the right of maintenance. In the case reported as [1996 (1) SCC 39], (Gurmit Kaur Vs. Surjit Singh Alias Jeet Singh), the Apex Court has discussed the position of the divorcee after such divorce. It is observed that in such a case, there will be no question considering the defence of separate residence by mutual consent after the divorce.

12. The discussion above shows that there is no possibility of interference in the decision given by the Sessions Court. In the result, the petition stands dismissed.

Petition dismissed.