Bombay High Court
Shri Prakash S/O Haribhau ... vs Smt. Bhumita W/O Prakash Tambakhe on 31 March, 2016
Bench: Ravi K. Deshpande
1 jud. ao37.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Appeal Against Order No.37 of 2015
Prakash s/o Haribhau Tambakhe,
Aged about 59 years, occ.-Retirement,
R/o.-3/85, Chhhatrasal Nagar, Phase-2,
Bhopal, Tq. and Dist-Bhopal. .... Appellant.
Versus
Smt. Bhumita w/o Prakash Tambakhe,
Aged about 55 years, Occ.-Retirement,
R/o.-Motinagar, Pusad, Tq. Pusad,
District Yavatmal. .... Respondent.
Mrs. Gauri Venkatraman, Advocate for appellant.
Shri G.M. Bagade, Advocate for respondent.
Coram : R. K. Deshpande, J.
st
Dated : 31
March, 2016.
ORAL JUDGMENT
1] The trial Court has dismissed Special Civil Suit No.34 of
2006 filed under Section 18 of the Hindu Adoptions and
Maintenance Act, 1956 [for short, 'the said Act'], claiming
maintenance by the wife. This decision of the trial Court
2 jud. ao37.15.odt
delivered on 05-02-2009 was the subject matter of challenge in
Regular Civil Appeal No.8 of 2009, which has been partly
allowed by the lower appellate Court by its judgment and order
dated 09-01-2015. The lower appellate Court has set aside the
judgment and decree passed by the trial Court and the matter is
remanded back to the trial Court to consider the provisions of
Sections 18 and 23 of the said Act and decide the matter in terms
of the decision of the Hon'ble apex Court in case of
Nagendrappa Natikar v. Neelamma, reported in 2013(2) All
MR 952 (S.C.). The husband is before this Court challenging
the decision of the lower appellate Court delivered on
09-01-2015.
2] The trial Court recorded a finding that the customary
divorce between the appellant and the respondent obtained on
05-08-1980 has been established and therefore the suit under
Section 18 of the said Act at the instance of the divorced wife for
grant of maintenance is not maintainable. The lower appellate
Court has relied upon the decision of the Hon'ble apex Court in
Nagendrappa's case (cited supra) to hold that the wife cannot be
precluded from claiming maintenance in a suit filed under
Section 18 of the said Act.
3 jud. ao37.15.odt
3] The question of law for determination by this Court is as
under :-
"Whether a divorced wife is entitled to
maintain a suit under Section 18 of the Hindu
Adoptions and Maintenance Act, 1956, to
claim maintenance from the former
husband ?"
4]
In the decision of the learned single Judge of this Court in
case of Nagorao Onkar Tayade v. Ranjana Nagorao Tayade,
reported in II (2005) DMC 17, it has been held that the suit under
Section 18 of the Hindu Adoptions and Maintenance Act is not
maintainable at the instance of the divorced wife though such a
wife can claim maintenance under Section 25 of the Hindu
Marriage Act, 1955. The question of law is therefore no more
res integra and it has to be held that such a suit at the instance of
the divorced wife is not maintainable under Section 18 of the said
Act.
5] The lower appellate Court has relied upon the decision of
the Hon'ble apex Court in Nagendrappa's case (cited supra), I
have gone through the decision and it is neither the argument
nor the finding recorded in the said decision that the wife who
4 jud. ao37.15.odt
had filed suit under Section 18 of the said Act was a divorced
wife. In view of this, the learned Judge of the lower appellate
Court has committed an error of law in applying the said
decision to the facts of the said case.
6] The learned Counsel appearing for the respondent wife
has tried to urge before this Court that the alleged dissolution of
marriage by way of mutual consent on 05-08-1980 was opposed
to public policy and cannot therefore be acted upon to hold that
there was divorce between the appellant and the respondent. The
question is essentially of the fact and was not raised before the
trial Court. On the contrary, it was admitted before the trial
Court that there was such customary divorce. The learned
Counsel for the wife submits that the Counsel appearing in the
trial Court for the respondent wife has made such a statement
without her consent and submits that it was obtained by fraud.
If this is the position, it is always open for the respondent to
institute appropriate proceedings for grant of such declaration
and such a question cannot be gone into under Section 18 of the
said Act, particularly, when it was neither raised nor any
evidence was led.
7] For the reasons stated above, the Appeal is allowed. The
5 jud. ao37.15.odt
judgment and order dated 09-01-2015 passed by the lower
appellate Court in Regular Civil Appeal No.8 of 2009 is hereby
quashed and set aside and a decree passed by the trial Court on
05-02-2009 in Special Civil Suit No.34 of 2006 is restored.
8] It is, however, made clear that it shall be open for the
respondent wife to file an application for grant of maintenance
under Section 25 of the Hindu Marriage Act, 1955 or to file
appropriate proceedings for declaration that such a dissolution
of marriage on 05-08-1980 was by practicing fraud upon her
and none of the observations made by the Courts below or by
this Court shall come in the way of the parties. Incidentally, it
may be noted here that the respondent wife is getting monthly
maintenance of Rs. 4,000/- per month from the year 2011
granted to her under Section 125 of the Code of Criminal
Procedure, 1973 and it shall also be open for her, if so advised,
to seek enhancement of maintenance by filing appropriate
proceedings.
JUDGE
Deshmukh
