Bombay High Court
Ashok Deochand Mali (Bhamre) vs Malti Ashok Mali (Bhamre) on 9 June, 2016
Bench: R.V. Ghuge
1 Cri.WP.No.504.04.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 504 OF 2004
Ashok Deochand Mali (Bhamre)
Age : 44 years, Occ. Service,
Petitioner
R/o Kusumba Tal. & Dist. Dhule.
VERSUS
Malti Ashok Mali (Bhamre)
Age : 40 years, Occ. Labour,ig
R/o. Deobhane fata, Tal. & Dist. Dhule. Responden
....
Mr. D. J. Patil, Advocate h/f
Mr. N. B. Suryawanshi, Advocate for the Petitioner.
Mr. A. R. Syed, Advocate h/f
Mr. S. P. Brahme, Advocate for the Respondent.
....
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 09/06/2016
ORAL JUDGMENT:
1. This petition was admitted on 02.11.2004 and this Court
refused interim relief to the petitioner.
2. The petitioner is aggrieved by the Judgment and order dated
27.08.2004, delivered by the Learned Judicial Magistrate First Class,
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by which Criminal Misc. Application No. 650 of 2002 filed by the
respondent seeking maintenance under Section 125 of the Code of
Criminal Procedure, was allowed. The petitioner is also aggrieved by
the Judgment of the Revisional Court dated 12.10.2004, by which the
Revision Application filed by the petitioner was rejected.
3.
The petitioner submits that the marriage in between the
petitioner and the respondent was solemnised on 11.05.1985. Three
daughters and one son are born out of the wedlock. The learned
counsel for the petitioner makes a grievance that though a customary
divorce was arrived at between the parties on 18.10.2000, the Trial
Court as well as the Revisional Court failed to consider the effect of
Section 125(4) and granted maintenance to the respondent. He
strenuously submits that on account of the customary divorce that
took place, the respondent was disentitled for claiming maintenance
and her application under Section 125 should have been rejected,
considering the effect and ambit of sub-Section 4 of Section 125.
4. Shri. A. R. Syed, learned Advocate for the respondent submits
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that this petition deserves to be dismissed on two counts. Firstly,
that the purported customary divorce which is said to have been
arrived at by virtue of the document dated 18.10.2000, termed as
Panch Farkat, was never registered and an un-registered document is
not recognized in law. Secondly, even if it is presumed that the
customary divorce has taken place, the Hon'ble Supreme Court
(three Judges Bench), in the matter of Bai Tahira vs. Ali Hussain
979 AIR SC 362 : 1979 SCR (2) 75
Fissalli Chothia and another 1 ,
has concluded that a divorced wife has a right to seek maintenance
under Section 125 and the dissolution of marriage makes no
difference to the right to seek maintenance.
5. I have considered the submissions of the learned Advocates.
6. It is not disputed that the purported customary divorce
document was not a registered document. The Trial Court has
considered the same and has concluded that if the said document,
(even if it is presumed to be admissible in evidence) is considered, it
does not reveal that the customs as are required to be followed in the
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concerned community of the litigating sides, were followed and hence
even on that count the divorce can not be termed to be a customary
divorce. The Trial Court, therefore, discarded the said document as it
had no probative value.
7. The Trial Court has considered the earnings of the petitioner as
is evident from paragraph No. 7 of the impugned order. The Trial
Court noted that the petitioner has to maintain his four children and
second wife. Considering this aspect, the Trial Court has directed the
petitioner to pay a meagre amount of Rs.1000/- by way of
maintenance to the respondent. The Revisional Court has rightly not
found any perversity in the conclusions of the Trial Court.
8. In the Judgment of the Supreme Court, in the case of Bai
Tahira A vs. Ali Hussain Fissalli Chothia (supra) it is concluded in
paragraph No. 5 as under :-
"Shri Bhandare, appearing for the
appellant, contended that the Courts below had
surprisingly forgotten the plain provision in the
Explanation (b) to Section 125 (1) of the Code which
reads :
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"wife" includes a woman who has been
divorced by, or has obtained a divorce from, her
husband and has not remarried.
On this foundation, he urged that accepting
the contention of the respondent that the appellant was
a divorcee, his client was still entitled to an allowance.
This is obviously beyond dispute on a simple reading of
the sub-section and it is curious how this innovative
and sensitive provision with a benignant disposition
towards destitute divorcees has been overlooked at all
the courts below. We hold that every divorcee,
otherwise eligible, is entitled to the benefit of
maintenance allowance and the dissolution of the
marriage makes no difference to this right under the
current Code. In the normal course, an order for
maintenance must follow, the quantum having been
determined by the learned Magistrate at the trial level."
9. It is, therefore, evident that every divorcée who is otherwise
eligible, would be entitled to the benefits of maintenance despite the
dissolution of marriage. In the instant case, the dissolution of
marriage has not been proved. So also, considering the earnings of
the petitioner, I do not find that the quantum of maintenance granted
by the Trial Court could be said to be exorbitant.
10. As such, I do not find any error in the impugned Judgments.
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The petition being devoid of merit is, therefore, dismissed. Rule is
discharged.
( RAVINDRA V. GHUGE, J.)
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