Dismissed

Rameshwar S/O Sand Kachkure v. the State of Maharashtra and Anr.

Bombay HC16 Mar 2018WP/295/2017

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order awarding maintenance. The wife alleged divorce and separate living consent denied maintenance. The court held the divorce deed was not valid for relinquishment purposes and mutual consent was not proven, upholding the maintenance award.

What did the court decide?

Writ Petition dismissed with no costs; Rule discharged. Original maintenance award stands.

Rameshwar S/O Sand Kachkure Vs the State of… — Maintenance and Alimony | Bombay HC (2018)

¶1

WP 295 17.odt

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

CRIMINAL WRIT PETITION NO. 295 OF 2017

¶4

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.

¶5

VERSUS.

¶6

1 The State of Maharashtra.

¶7

2 Yamuna w/o Rameshwar Kachkure, Age 40 years, Occ. Service, R/o. Dhopteshwar, Tq. Badnapur, ... Respondents . District Jalna.

¶8

...

¶9

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.

¶10

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

¶11

JUDGMENT

¶12

1. Rule. Rule made returnable forthwith. By

¶13

consent of the learned counsel for both parties, this
petition is taken up for final hearing.

¶14

2.The respondent No. 2 filed an application for
maintenance under the provisions of section 125 of the

¶15

Code of Criminal Procedure, bearing Criminal Misc.
Application No. 38/2015 before Judicial Magistrate,

¶16

1/14

¶17

WP 295 17.odt

¶18

First Class, Badnapur, District Jalana.

¶19

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

¶20

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.

¶21

4. The petitioner appeared in the Trial Court and
submitted his say and has admitted the marriage with

¶22

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

¶23

him and respondent No. 2 on 13.08.2004 and the
respondent No. 2 has relinquished her right of

¶24

maintenance and since the date of divorce i.e.
13.08.2004, respondent No. 2 is residing at her parents

¶25

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.

¶26

2/14

¶27

¶28

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).

¶29

6.Besides the oral evidence of the parties,
reliance is placed by the petitioner on documents i.e.
divorce-deed (Exh. 14), 7x12 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.

¶30

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

¶31

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.

¶32

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

¶33

3/14

¶34

WP 295 17.odt

¶35

learned counsel for petitioner and Mr. Patil, h/f Mr.
Gaikwad, learned counsel for respondent No. 2.

¶36

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

¶37

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

¶38

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 :

¶39

“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

¶40

4/14

¶41

WP 295 17.odt

¶42

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.“

¶43

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

¶44

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

¶45

argued that the right of maintenance cannot be
relinquished by executing a divorce-deed. He further

¶46

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.

¶47

11.From the scrutiny of record it appears that,

¶48

the respondent No. 2 in her oral evidence i.e. in para
No. 5 of the affidavit it has been specifically deposed

¶49

that petitioner had taken respondent No. 2 in the

¶50

office of Sub-Registrar Badnapur and the petitioner
posed that he is purchasing some landed property in the

¶51

5/14

¶52

WP 295 17.odt

¶53

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.

¶54

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:

¶55

“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.”

¶56

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.

¶57

14. Mr. Mantri, further relied upon the
observations in Criminal Writ Petition No. 403/2009

¶58

6/14

¶59

WP 295 17.odt

¶60

(Bhaskarrao Uttamrao Patil ( Chopde) V/s. Sau. Sumanbai
@ Kokilabai Bhaskarrao Patil (Chopde), wherein it is
observed in para No. 3 that :

¶61

“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.”

¶62

Again, it is a case relating to the fact that

¶63

wife was living separately from husband by mutual
consent and without sufficient cause or reason.

¶64

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.”

¶65

16.Mr. Mantri, learned counsel, further relied

¶66

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

¶67

C.R. 343 (Shrawan Sakharam Ubhale V/s. Durga (Sau.) w/o

¶68

7/14

¶69

WP 295 17.odt

¶70

Shrawan Ubhale & others) wherein it is observed that :

¶71

“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
voluntarilysurrenderedherrightsto
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

¶72

8/14

¶73

WP 295 17.odt

¶74

pertinent to notice that contracting out of the
right under section 125 Cri.P.C. is not
prohibited.”

¶75

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.

¶76

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).

¶77

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

¶78

9/14

¶79

WP 295 17.odt

¶80

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

¶81

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

¶82

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.

¶83

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

¶84

has relied upon the observations in case reported in
2013 Cri.L.J. 3593 (Ramesh Dagaa Landge Vs. Sau.

¶85

Sindhubai Ramesh Landge and others) in which reference
of the case reported in (2005 (3) Mh.L.J. 137), Bombay

¶86

High Court (Tajaswini d/o Anandrao Tayade Vs.
Chandrakant Kisanrao Shirsat), wherein it is observed :

¶87

“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

¶88

10/14

¶89

WP 295 17.odt

¶90

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.”

¶91

20.Lastly, Mr. Patil, learned counsel for

¶92

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 :

¶93

“18.5Not 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.

¶94

18.6It is to be recognised that no amount

¶95

11/14

¶96

WP 295 17.odt

¶97

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

¶98

12/14

¶99

WP 295 17.odt

¶100

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.”

¶101

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

¶102

by the Gujrat High Court in case cited (supra) in this
context attains finality. Therefore, no contrary view

¶103

13/14

¶104

WP 295 17.odt

¶105

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

¶106

22.On perusal of the facts and circumstances of

¶107

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

¶108

of the alleged relinquishment of right of maintenance
in the alleged divorce-deed.

¶109

23.Apart from the above facts, it is not

¶110

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.

¶111

24.In view of the above, the Writ Petition is
liable to be dismissed. Accordingly it is dismissed
with no costs.

¶112

25.Rule is discharged.

¶113

mkd

¶114

14/14

Rameshwar S/O Sand Kachkure v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Rameshwar S/O Sand Kachkure v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dr. Nilesh Vinayak Marathe Vs the State of Maharashtra and Anr.

Dr. Nilesh Vinayak Marathe Vs the State of Maharashtra

Sayyad Akil S/O. Rauf and Others Vs Vaseem Fatema Hashmi W/O. Sayyad Akil and Anr.

Kinetic Engineering Ltd. through Its Authorized A.G.M. (Hr and Admn) Shashikant Shivanand Gulve Vs the State of Maharashtra

Kinetic Engineering Ltd. through Its Authorized A.G.M. (Hr and Admn) Shashikant Shivanand Gulve Vs the State of Maharashtra

Kusum Shriram Bhosale and Ors. Vs Shripad Shankarrao Burkule and Ors.