Gajanan S/O Pandurang Solanke vs Sheela Gajanan Solanke And Ors.
2004 Latest Caselaw 852 Bom

JUDGMENT

A.P. Lavande, J.

1. This criminal revision application is filed by the applicant challenging the judgment and order dated 29-2-2000 passed by Ilnd Additional Sessions Judge, Achalpur, allowing revision filed by respondent Nos. 1 and 2 herein against the judgment and order dated 16-4-1998 in Misc. Criminal Case No. 221/1995.

2. I have heard Mr. Samel learned counsel for the applicant and Mr. Ahirkar, learned Additional Public Prosecutor for respondent No. 3. None appeared on behalf of respondent Nos. 2 and 3 though they were duly served.

3. The applicant married respondent No. 1 on 5-5-1985. Thereafter, relations between the husband and wife got strained, and ultimately on 9-12-1988 the applicant and respondent No. 1 executed mutual deed of divorce as well as separate consent deed, which is at Annexure-A. Respondent No. 1 on her behalf and on behalf of respondent No. 2, who was a minor, filed Misc. Criminal Case No. 221/1995 in the Court of Judicial Magistrate First Class, Daryapur, claiming maintenance of Rs. 500/- per month for herself and Rs. 400/- per month for respondent No. 2~ Pratik Solanke. The application was filed on 22-11-1995. In the said case, respondent No. 1 examined herself and applicant examined himself in support of their case. The learned Judicial Magistrate First Class by the judgment and order dated 16-4-1998 dismissed the application filed by respondent Nos. 1 and 2 holding that it was not proved that the applicant has neglected and refused to maintain respondent Nos. 1 and 2 herein. The learned Judicial Magistrate First Class also held that respondent No. 1 had not proved that respondent No. 2 was the son of the present applicant. The learned Judicial Magistrate First Class also held that respondent No. 1 had capacity to maintain herself and her son. The learned Judicial Magistrate First Class however, gave finding that applicant herein was capable of providing maintenance to respondent Nos. 1 and 2. The learned Judicial Magistrate First Class on the basis of evidence on record held that since the husband and wife are separated by consent deed to which the father of respondent No. 1 was a signatory, respondent Nos. 1 and 2 herein had not proved that Pratik was born out of wedlock. The learned Judicial Magistrate First Class held that there was neither oral nor documentary evidence to prove that respondent No. 2 herein is the son of present applicant. The learned Judge was impressed by the fact that in the consent deed there was no specific mention about pregnancy of respondent No. 1 since respondent No. 1 was carrying pregnancy for more than six months having regard to the fact that Pratik was born on 1st of March, 1989. On the basis of evidence on record, learned Magistrate held that respondent No. 1 was capable of maintaining herself and since respondent No. 2 was not the son of the present applicant, the question of providing maintenance did not arise. Accordingly, learned Magistrate dismissed the said application for maintenance filed by respondent Nos. 1 and 2 herein. The Revisional Court, while reversing the judgment and order of the learned Magistrate held that even a divorced wife is not debarred from claiming maintenance in spite of the consent deed or relinquishment of maintenance by respondent No. 1 was not binding on the child born to the divorced wife. Insofar as the capacity to maintain respondent No. 1 and her child is concerned, the Revisional Court gave finding in the negative. The Revisional Court further gave finding that the present applicant had sufficient means to pay maintenance allowance to respondent Nos. 1 and 2. Accordingly, the revision was allowed and maintenance of Rs. 500/- per month was granted in favour of respondent No. 1 and maintenance of Rs. 400/- per month was awarded in favour of respondent No. 2.

4. Mr. Samel, learned counsel appearing for the applicant, at the outset, invited my attention to Annexure-A, which was produced in the course of evidence before the Court of Judicial Magistrate First Class, which is the consent deed signed by the applicant and respondent No. 1 herein. According to Mr. Samel, in terms of said consent deed respondent No. 1 has given up her claim for maintenance and agreed to live separately from the date of execution of the said deed dated 9-12-1988. In view of this document, learned counsel for the applicant submits that the finding of the Revisional Court is patently illegal. According to learned counsel for the applicant, if the wife after executing document of divorce and mutual separation, she was not entitled to claim maintenance in terms of Section 125 of Code of Criminal Procedure. The learned counsel invited my attention to Clause (c) of sub-section (3) of Section 127 of Code of Criminal Procedure, which reads as under :-

"Section 127(3) : Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that -

(a) .......

(b) .......

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

5. Mr. Samel has further relied on two judgments of this Court in support of his submission that if wife accepts that there is divorce by mutual consent on certain terms and conditions, and she gives up her claim for maintenance past and future, an application for claiming maintenance, under Section 125 of Code of Criminal Procedure is not maintainable. Reliance has been placed by Mr. Samel, learned counsel appearing for applicant on the judgments of this Court , Smt. Sushilabai w/o Ravan Patil v. Shri Ravan Elji Patil and Anr. and Anr. judgment of this Court reported in 1990 Mh.L.J. 418, Shrawan Sakharam Ubale v. Durga Shrawan Ubale and Ors.. Relying upon the said two judgments, Mr. Samel submits that in case wife takes divorce from her husband and starts living separately by mutual consent, then the wife is not entitled to claim maintenance from her husband. The learned counsel drew my attention to the judgment of this Court reported in 1995(5) Bom. C.R. 74 (supra) which has relied upon Division Bench judgment of this Court taking similar view. According to learned counsel, in view of these two judgments, more particularly the judgment of Division Bench of this Court reliance placed by the Revisional Court on judgment passed by the learned Single Judge reported in 1999(2) B.Cr.C. 354 (supra) is unwarranted. The learned counsel appearing for applicant points out that no reference has been made to two judgments relied upon by him in the judgment given by the Additional Sessions Judge. According to learned counsel, on a plain reading of consent deed, which is on record, it is evident that respondent No. 1 has agreed to stay separately from the present applicant and has agreed not to claim any amount by way of maintenance or otherwise in future from the present applicant. According to learned counsel, the said document has been duly proved and in view of the said document, only conclusion that can be drawn is that respondent No. 1 has given up her right to claim future maintenance. The learned counsel also drew my attention to the fact that in the said deed, it is mentioned that an amount of Rs. 500/- and whatever ornaments given in marriage were returned by the applicant to respondent No. 1. Relying on the said consent deed, Mr. Samel submits that respondent No. 1 cannot claim any maintenance from the applicant and to that extent, the Revisional Court was legally not justified in interfering with the judgment and order passed by the learned Judicial Magistrate First Class dismissing application filed by respondent No. 1 on her behalf and on behalf of respondent No. 2.

6. In view of ratio laid down in the judgments cited by the learned counsel appearing for the applicant to the effect that if wife after taking divorce from her husband agrees to stay separately and give up her claim of maintenance, the wife is not entitled to claim maintenance under Section 125 of Criminal Procedure Code. I am of the opinion that the submissions made by learned counsel appearing for the applicant are well founded and deserve to be accepted. Therefore, the judgment and order passed by the Revisional Court deserves to be set aside insofar the grant of maintenance to respondent No. 1 is concerned.

7. The next question which arises is whether grant of maintenance of Rs. 400/- per month in favour of respondent No. 2, the son of respondent No. 1 is legal and justified. According to learned counsel, having regard to the consent deed, it is conceivable and improbable that the child was born out of wedlock on 1-3-1989. The learned counsel submits that if the statement of respondent No. 1 that Pratik was born on 1-3-1989 is accepted, the only inference which can be drawn is that at the time of execution of consent deed on 9-12-1988, respondent No. 1 was pregnant of over about six months and in that case mention must have been made of the said fact in the consent deed. According to learned counsel appearing for applicant, non-mentioning of this fact in the consent deed that no child was born out of wedlock, and therefore, the claim of maintenance by respondent No. 1 on behalf of respondent No. 2 was not maintainable. In view of the fact that none has appeared on behalf of respondent Nos. 1 and 2, I have given my anxious consideration to the submissions made by the learned counsel for the applicant. From the judgments and orders passed by the Judicial Magistrate First Class as well as by the Revisional Court, it is clear that statement made by respondent No. 1 in her evidence that the child was born out of wedlock on 1-3-1989 has not been dislodged by proper cross-examination except putting suggestion that the child was not born out of wedlock. There is no cross- examination of respondent No. 1 so as to enable this Court to come to the conclusion that the child was not born on 1-3-1989 as stated by respondent No. 1. It was possible for applicant during the course of evidence to bring on record appropriate evidence by cross-examining respondent No. 1. However, the applicant has not chosen to do so. In the absence of any cross-examination, it is difficult for this Court to come to the conclusion that respondent No. 2 is not the son of the applicant. It is pertinent to note that respondent No. 2 was a minor and still continuous to be minor and this Court has to be cautious in passing order against respondent No. 2, who is a minor. The finding of the learned Judicial Magistrate First Class to the effect that there is no oral or documentary evidence to prove the fact that Pratik was born out of wedlock is absolutely perverse. The learned Magistrate has totally lost sight of the fact that respondent No. 1 has deposed that Pratik was born on 1-3-1989 out of wedlock and in the absence of any cross-examination to that statement, the finding of the learned Magistrate that there is no evidence to prove that respondent No. 2 is the son of applicant is absolutely perverse. That being the position, the finding of the Revisional Court that respondent No. 2 is the son of applicant and is entitled to maintenance of Rs. 400/- per month cannot be faulted. I am unable to accept the statement of learned counsel appearing for applicant that this Court, relying upon the consent deed should draw inference that in absence of any mention about the pregnancy of respondent No. 1, adverse inference must be drawn against respondent No. 1. The applicant had full opportunity to cross-examine respondent No. 1 and he has not availed of the opportunity to bring on record the relevant evidence, which should have been brought on record. In this view of the matter, I find that grant of maintenance of Rs. 400/- to the respondent No. 2 by the Revisional Court cannot be faulted.

8. In the result, therefore, criminal revision application No. 88/2000 is partly allowed. The judgment and order dated 29-2-2000 passed by Ilnd Additional Sessions Judge, Achalpur, granting maintenance to respondent No. 1 is quashed and set aside. The judgment and order dated 29-2-2000 insofar as it grants amount of maintenance of Rs. 400/- per month to respondent No. 2 is concerned, is maintained. Criminal Revision Application is disposed of in the aforesaid terms.