JUDGMENT S.R. Dongaonkar, J.
1. Heard learned Counsel for the parties.
By this criminal revision application, the applicant is challenging the order passed by the Additional Sessions Judge, Achalpur in Criminal Revision No. 59/2003 dated 27-5-2004 by which he allowed the revision petition of the respondent and set aside order of maintenance passed by the Judicial Magistrate First Class, Chandur Bazar in Criminal Case No. 30/2001, filed by the present applicant, decided on 10-10-2003.
2. The case of the applicant is that she is legally wedded wife of the respondent. Their marriage was solemnized in the year 1964. Out of this wedlock one issue was born who expired in the year 1973. The respondent had neglected to maintain the applicant. Because of cruelty and desertion, she was compelled to live with her father. It is alleged that the respondent had married with another lady. The applicant preferred application for grant of maintenance under Section 125 of Criminal Procedure Code bearing Criminal Case No. 30/2001 in the Court of Judicial Magistrate, First Class, Chandur Bazar. According to her; she is unable to maintain herself and the respondent is a retired Police Constable who had received pensionary and other benefit and is also receiving monthly pension. Besides; this he possessed some agricultural land and has income from the same. She claimed maintenance of Rs. 1500/- per month along with costs.
3. The respondent by submitting his reply resisted the application. He admitted the relationship and also birth of a male child. He also admitted second marriage. However, he specifically claimed that there was mutual divorce between the parties and the applicant was living separate since then and she did not claim maintenance till this application was filed. According to him, it was the applicant who was hot tempered and she also used to avoid doing domestic work. Main contention was that there was customary divorce between the parties and the applicant was living separate by mutual consent since 8-3-1973 and as she was able to maintain herself by doing job of Nurse, he claims that she is not entitled for maintenance.
4. Evidence was led in the trial Court. The learned Judicial Magistrate First Class accepted the case of the applicant and allowed the application by awarding maintenance of Rs. 600/- per month to the applicant, besides the costs of Rs. 500/-. This order was challenged by the respondent before the Additional Sessions Judge, Achalpur in Criminal Revision Application No. 59/2003, wherein he succeeded, the order granting maintenance was set aside by the learned Additional Sessions Judge, Achalpur by his order dated 27-5-2004.
5. This order is challenged in this revision application.
6. Learned Counsel for the applicant has contended that the order of the learned Additional Sessions Judge is totally incorrect, unjust and improper at law. According to him, till when the applicant was able to maintain herself, she did not file any application for grant of maintenance. Further according to him, the respondent has filed a petition for divorce against the applicant. The marriage between the parties is clearly undissolved and therefore when she has found unable to maintain herself, she would be entitled for maintenance. He contended that the applicant is not doing any job now and because of her old age she is entitled to maintenance. It is specifically contended that the alleged divorce deed i.e. Sammati Lekh has no value in the eyes of law and it is unilateral document and therefore, it cannot be said to be effecting any customary divorce between the parties and therefore, the learned trial Court was right in allowing the application for grant of maintenance filed by the applicant, therefore, the said order should be restored.
7. As against this, learned Counsel for the respondent has submitted that the order of the learned Additional Sessions Judge is correct at law. According to him, after the execution of the said Sammati Lekh (divorce deed) she is living separate. She is doing the job of nurse and therefore, she is able to maintain herself. According to him, as the applicant-wife is living separate for a considerably long time and she was divorced, respondent was entitled to marry and as the pensionary benefits could not be diverted to his wife he had to file a divorce petition and therefore that divorce petition cannot be a ground for coming to the conclusion that the marriage between the parties is still subsisting. Therefore, according to him; as parties are living separate by mutual consent of divorce, she is not entitled for maintenance, besides the fact that she is able to maintain herself.
8. It may be stated that the learned Additional Sessions Judge has found that the respondent (present applicant) is the divorcee by customary divorce and the relevant paper is filed on record. He has observed that as this customary divorce was not accepted by the respondent, husband filed divorce petition. Therefore, he has concluded that by executing the document of customary divorce as the non-applicant could not give divorce to the applicant, the divorce petition was filed. Therefore, it was not of any consequence. He has relied heavily on the said that document of divorce. He has found that the applicant is living separate by mutual consent since many years and therefore, she is not entitled for maintenance. He has also found that the applicant is doing part time Nursing Job and therefore, also she cannot be treated as a wife unable to maintain herself. As such he therefore, allowed the revision petition and set aside the order of grant of maintenance in favour of the applicant.
9. Learned Counsel for the respondent while adopting the reasons above has relied on unreported judgment of this Court in Criminal Revision Application No. 42/2003 dated 30-8-2006 (Coram : R.C. Chavan, J). According to him, the facts in that case are similar to this one and therefore, revision application of the applicant should be dismissed.
10. The only question for my determination is whether the order of the learned Additional Sessions Judge, impugned in this revision petition is correct, proper or just.
11. In order to appreciate the rival contentions of the parties, it would be seen that there is no dispute that the parties had married in 1964. However, the applicant is living separate since 1973 after the execution of the relevant document which is called as Sammati lekh (divorce deed). It is also not in dispute that for more than 25 years, the applicant did not claim any maintenance. It is also admitted that the respondent has filed divorce petition to seek divorce from the applicant, though it is claimed that it is filed, because his department did not accept the alleged customary divorce between the parties as legal.
12. In these circumstances, the alleged divorce deed needs to be closely examined. The said document is at Exhibit 29 and it reads thus:
laefrys[k fygwu ?ks.kkj fgEerjko fdlujko tqu/kjs jkg.kkj uk;xkao rk- vpyiwj ft- vejkorh ;kal fygwu ns.kkj vk'kk tuts fgEerjko tqu/kjs gYyh eq- djtxkao rk- vpyiwj ft- vejkorh eh laefrys[k fygwu nsrs dh] rqEgh ek>s yXukps Hkzrkj vkgkar- ijarq vkiys vkilkr iVr ulY;keqGs rqEgh eyk QqdV lksMfpB~Bh fnyh vkgs] rqeps iklwu >kysyk ,d eqyxk vkgs- gk lqekjs 12 efgU;kpk vkgs- rks rqeps Lok/khu dsyk vkgs- vkrk vkiys uojk ck;dksps ukrs eqGhp jkfgys ukgh- rqEgh fnysY;k lksMfpB~Bhl ek>h iw.kZ lgkuqHkwfr vlwu lksMfpB~Bhpk eh fLodkj dsyk vkgs- gk laefrys[k dkgh u ?ksrk QqQV fygwu fnyk vkgs- rks eyk iw.kZ ekU; vkgs-
gk laefrys[k jkth [kq'khus lko/ki.ks fygwu fnyk rks eyk iw.kZ ekU; vkgs- rk-
8&3&1973 b- nLrqj x.kir t;jketh cksM[ks] jk- djtxkao lk{k lfg ckiqjko jketh okludkj vk'kk tqu?kjs nsojkt ukjk;.kjko lksukj (True translation) CONSENT DEED I Asha w/o Himmatrao Junghare, presently resident of Karajgaon, Tahsil Ashalpur, District: Amravati hereby execute this consent deed in favour of Himmatrao Kisanrao Junghare, resident of Naigaon, Tahsil Achalpur, District: Amravati, that you are my wedded husband. However, since we are not cordial to each other. You have given me divorce without any consideration. I am having one son born of you. He is about 12 months old. He is handed over to you. Now there is no relation between us as husband and wife. I have sympathy to divorce given by you and I have accepted the same. This consent deed is executed without any consideration free of cost. I agree to it fully. I have executed this consent deed at own free will and carefully, I agree with the same fully. Hence signed on 8-3-1973.
Written by : Ganpat Jairamji Bodkhe, R/o Karajgaon.
Witness sd/ Asha Junghare Bapurao Ramji Wasankar Deorao Narayanrao Sonar
13. On perusal of this deed it would be seen that it is the say of the applicant that the respondent had given Fukat Sodchitthi, meaning thereby there was no relationship of husband and wife and there was no consideration for this alleged Sodchitthi. It is not disputed that since then she is living separate.
14. The very fact that the respondent had to file divorce petition show that this document cannot be treated as a document of divorce at law. There is no custom established on record to show that by such unilateral execution of document by the wife divorce can be effected in the community of parties. It is impossible for me to come to the conclusion considering tenor and the contents of the document, that this was a valid divorce between the parties and therefore, in my opinion, the view taken by the learned Additional Sessions Judge that as per this divorce deed there was a divorce between the parties and divorce petition was merely an attempt to get it certified, cannot be accepted.
15. It is true that the applicant did not claim any maintenance since 1973 till 2001, when this application was filed, but that fact by itself will not disentitled her from claiming maintenance, if she proves that she is not able to maintain herself. It is contended by learned Counsel for the applicant that till when she was able to maintain herself, she did not claim any maintenance and that is the fact which can be accepted in these circumstances of the case where the applicant has now become aged about more than 55 years and is growing old, incapacitating her do any job of earning livelihood. No doubt, there is evidence of witness Dr. Ramesh adduced by the respondent to show that the applicant was working as a part time lady attendant in his hospital, but that evidence clearly shows that her service is not permanent. He has also stated that he did not know whether the applicant is doing any other job. His evidence does not show that applicant can continue with the said job even if she become old lady. Considering the age of the applicant in my opinion, it was necessary for the respondent to prove specifically that she had sufficient means to maintain herself even at her late age. It is brought on record to show that the applicant was living with her father for this pretty long time. There is also evidence on record to show that about 5 years prior to the application her father had died. Therefore, unless there is clear evidence on record to show that she has some income by which she is able to maintain herself, the inference that she is not entitled for maintenance as she is able to maintain herself, cannot be drawn. On this count, therefore, the inference drawn by the learned Additional Sessions Judge, cannot be said to be correct.
16. Learned Counsel for the respondent, as stated above has relied on the unreported judgment of this Court in Criminal Revision No. 42/2003. Although some facts therein are similar to the facts in the instant case, one glaring fact in that case is distinguishable and that is in that case it was alleged that the husband therein had noticed the pregnancy of the wife and it was claimed that there was illicit relationship of the wife with some other person. It is also there that therefore on 23-9-1979 the parties had executed the document titled as Agreement of Divorce and after that wife given birth to a child. It is necessary to bear in mind that in that case there was an "agreement of divorce" and the husband therein had stated that the divorce deed was also signed by the wife, meaning thereby both the parties had signed that document. In the present case there are no contentions, raised to that effect. In fact, as stated above, the said document is unilateral document, accepted by the wife only and therefore, the observations in that Criminal Revision Application No. 42/2003 (Coram : R. C. Chavan, J) are not applicable to the case in hand.
17. It is an admitted position that respondent has retired from Police Department, he must be having pensionary and other benefits and therefore it has to be held that he has means to pay the separate maintenance. The maintenance awarded to the applicant was Rs. 600/- per month. There is no challenge to the quantum of this maintenance and therefore, it has to be confirmed.
18. The net result of this discussion is that the order passed by the learned Additional Sessions Judge, Achalpur is not proper and just and therefore, it is liable to be set aside and that of learned J.M.F.C. needs to be restored. Accordingly, this revision application is allowed. Order passed by the Additional Sessions Judge, Achalpur in Criminal Revision No. 59/2003 dated 27-5-2004 by which he allowed the revision petition of the respondent is hereby set aside and the order of maintenance passed by the Judicial Magistrate First Class, Chandur Bazar in Criminal Case No. 30/2001, filed by the present applicant, decided on 10-10-2003, is hereby restored. As the husband will be required to pay arrears the maintenance, he is allowed to pay the same within a period of six months from today.