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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Writ Petition No.403 of 2009
Bhaskarrao Uttamrao Patil (Chopde),
Aged about 55 years,
Occupation - Service,
R/o Rukmini Nagar,
Near Big Well,
Plot No.123,
Near Santoshi Mata Mandir,
Kunj Vihar, Nagpur. ... Petitioner
Versus
Sau. Sumanbai @ Kokilabai
Bhaskarrao patil (Chopde),
Aged about 45 years,
Occupation - Household,
At present R/o Khamgaon,
District Buldana. ...Respondent
Shri A.D. Dangore, Advocate for Petitioner.
Ms Mausmi Bagde with Shri A.P. Sadawarte, Advocates for
Respondent.
Coram : R.K. Deshpande, J.
th Dated : 6 October, 2017 Oral Judgment :
1. The challenge in this petition is to the judgment order dated 7-2-2009 passed by the learned Principal ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 2 wp403.09.odt Sessions Judge, Buldana, in Criminal Revision No.51 of 2006, setting aside the judgment and order dated 28-12-2005 passed by the learned Judicial Magistrate First Class, Malkapur, District Buldana, in Misc. Criminal Case No.72 of 2004, rejecting the application for grant of maintenance. The petitioner claims setting aside of the judgment and order passed by the Revisional Court and restoration of the judgment and order passed by the Trial Court.
2. The petitioner and the respondent got married on 16-2-1975. By way of consent terms reduced in writing on 24-8-1979, the parties decided to live separately and the respondent-wife agreed not to claim any maintenance. Thereafter, a notice was issued on 17-5-2004, i.e. after a lapse of 25 years, by the respondent-wife to the petitioner-husband calling upon him to pay the monthly maintenance, which was rejected by the Trial Court and allowed by the Revisional Court granting maintenance at the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 3 wp403.09.odt rate of Rs.700/- per month.
3. 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 24-8-1979 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.
4. Ms Mousmi Bagde, the learned counsel appearing for the respondent-wife, has relied upon the decision of the Division Bench of this Court in the case of Geeta Satish Gokarna v. Satish Shankarrao Gokarna, reported in 2004(3) Mh.L.J. 159, to urge that this Court has laid down that the wife is entitled to maintenance even if in the consent ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 4 wp403.09.odt terms she had agreed not to claim maintenance. She has further relied upon the decision of the learned Single Judge of this Court in the case of Ashabai Himmatrao Junghare v. Himmatrao Kisanrao Junghare, reported in 2007(1) Mh.L.J. 802, wherein it is held that the fact that the wife did not claim any maintenance from 1973 to 2001 will not disentitle her from claiming maintenance.
5. Shri Dangore, the learned counsel appearing for the petitioner, has relied upon the decision of the Apex Court in the case of Deb Narayan Halder v. Anushree Halder, reported in 2004(1) Bom.C.R. (Cri.) 949, and the decision of the learned Single Judge of this Court in the case of Sow. Sumanbai Ramesh Garje & Anr. v. Ramesh Dagadu Garje, reported in 2014 All MR (Cri) 3710, to urge that the wife becomes disentitled to maintenance under sub-section (4) of Section 125 of the Criminal Procedure Code. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 5
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6. In the present case, this Court is not concerned with the entitlement of the wife for maintenance under Section 25(1) of the Hindu Marriage Act, which does not contain any provision similar to one under sub-section (4) of Section 125 of the Criminal Procedure Code. The proposition of law laid down in Geeta's case, cited supra, therefore, does not apply to the facts of the present case. So far as another decision of the learned Single Judge of this Court in Ashabai's case, is concerned, the proposition laid down therein that though the wife did not claim any maintenance from 1973 to 2001, the same will not disentitle her from claiming maintenance, also cannot be disputed. However, in the present case, this Court is concerned with the wife living separately from her husband by mutual consent and without sufficient cause or reason. This was not the position reflected in the judgment in the case of Ashabai. Hence, the said decision is also not applicable to the facts of the present case. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 6
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7. In terms of sub-section (4) of Section 125 of the Criminal Procedure Code, a clear case is made out on the basis of the agreement at Exhibit 39 dated 24-8-1979, which is proved in support of the case that the wife has been residing separately from her husband without sufficient cause or reason or has refused to live with the husband or that she is living separately by mutual consent. In view of the law laid down by the Apex Court in the case of Deb Narayan, and by this Court in the case of Sumanbai, cited supra, the wife becomes disentitled to claim maintenance on this count. A period of 25 years has lapsed and the petitioner-husband has remarried and he got three children from his remarriage. The learned Judge of the Trial Court failed to see that this was a case under Section 125(4) of the Criminal Procedure Code and unless the said provision is struck down, it has to be given effect to.
8. In the result, the petition is allowed. The judgment and order dated 7-2-2009 passed by the learned Principal ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 ::: 7 wp403.09.odt Sessions Judge, Buldana, in Criminal Revision No.51 of 2006, is hereby quashed and set aside. The judgment and order dated 28-12-2005 passed by the learned Judicial Magistrate First Class, Malkapur, District Buldana, in Misc. Criminal Case No.72 of 2004, is restored.
9. Rule is made absolute in the aforesaid terms. No costs.
JUDGE.
Lanjewar ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:06:28 :::