Vilas Sitaram Aute vs Mangala Vilas Aute & Anr
2016 Latest Caselaw 1182 Bom

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                                         -1-




                                                                             
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                     
                       CRIMINAL WRIT PETITION NO. 336 OF 2003

     Vilas Sitaram Aute,
     Age: 30 years, OCC: Barber,
     R/o. Rasate Suregaon,




                                                    
     Tal. Yeola, Dist. Nashik.                        ...Petitioner

                               versus

     1.       Mangala Vilas Aute,




                                       
              Age: 30 years, Occ: Household
              and Labour, R/o. 80 Feet Road,
                             
              Shivaji Nagar, Dhule.

     2.       Sitabai Vilas Aute,
              Age: 9 years, Minor,
                            
              Through her mother
              respondent No.1.

     3.       State of Maharashtra.                   ...Respondents
      


                                        .....
     Mr. N. R. Dayama, Advocate h/f Mr. Mukul Kulkarni, Advocate for petitioner
   



     Mr. P. B. Patil, Advocate for respondent Nos.1 & 2
     Ms. R. P. Gour, A.P.P. for respondent No. 3
                                        .....





                                           CORAM : N.W. SAMBRE, J.

DATE : 4th APRIL, 2016

ORAL JUDGMENT :

This writ petition is by the petitioner-husband. The

parties have entered into contract of marriage on 23/03/1992. It is

claimed that on 25/11/1994 the petitioner and his wife Mangala

entered into a settlement and registered a deed of divorce. The

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petitioner claims that he has paid one time alimony in lumpsum i.e.

Rs.3000/- for wife and Rs.5000/- for his daughter, total Rs.8000/-.

According to him, in the above referred background, Criminal Misc.

Application No. 178 of 1994 preferred by wife-Mangala for

maintenance under Section 125 of the Code of Criminal Procedure

was not tenable, still the Magistrate has proceeded to pass an order

awarding maintenance of Rs.300/- per month each to present

respondent Nos. 1 and 2 i.e. total Rs.600/- per month, by an order

dated 24/12/2001, which was upheld in revision bearing Criminal

Revision Application No. 22 of 2002 before learned Additional

Sessions Judge, Dhule, by an order dated 03/05/2003.

2. By relying upon the judgment of this Court in the matter

of Popat Kashinath Bodke vs. Kamalabai Popat Bodke and

others reported in 2003(2) Mh.L.J. 608, learned Counsel for the

petitioner would urge that the order of maintenance is not sustainable

in view of the fact that the petitioner has taken recourse to the

divorce by mutual consent by adhering customary system as is

prevailing in Nhavi community, to which they belong.

3. He would then submit that the petitioner being barber by

profession, is unable to maintain or pay the maintenance amount.

4. Learned Counsel for the respondents opposed the

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application on the ground that the alleged divorce by mutual consent

and acceptance of one time alimony is not recognized in the custom

as are followed in the community, to which both the petitioner and

respondents belong. He would submit that grown up daughter from

second marriage is required to be maintained by the petitioner-

husband and as such, the Court below rightly invoked provisions of

Section 125(1) of Code of Criminal Procedure in favour of the

respondents. Learned Counsel for the respondents prays for

dismissal of the writ petition.

5. With the assistance, I have perused the findings

recorded by learned Magistrate, so also the Revisional Court.

6. Learned Magistrate, after framing the points as regards

maintainability of the application and financial capacity of the

respondent to maintain herself, has ruled in favour of the

respondents by observing that the remedy provided under Section

125(1) of the Code of Criminal Procedure is statutory remedy and

cannot be taken away in view of divorce by mutual consent, which

has hardly any sanctity in law or was not approved by the Court.

7. It is required to be noted that the revisional Court then

re-examined the issue and has confirmed the order passed by

learned Magistrate by dismissing the revision.

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8. The order of payment of maintenance holds field since

24/12/2001, which was not stayed by this Court.

9. Looking to the expenses as are incurred on the date, the

amount of maintenance as ordered Rs.300/- per month to each

respondent Nos. 1 and 2, in my opinion, the judgment in the matter of

Popat Kashinath Bodke (supra), will hardly be any assistance to the

petitioner, as it is not established that the divorce by adopting

customary practice is recognized in the community to which present

parties are belonging to.

10. As such, no case for interference in extraordinary

jurisdiction is made out. The writ petition, as such fails and stands

dismissed.

Sd/-

[ N.W. SAMBRE, J. ]

Tupe/04.04.16