Bombay High Court
Sangita Sanjay Gaikwad vs Sanjay Sukhdeo Gaikwad & Ors on 18 November, 2016
Bench: Z.A. Haq
1 Cr. W.P. 207.2004 - [ J ]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 207 OF 2004
Sangita W/o Sanjay Gaikwad
Age : 24 Yrs., Occ. :Household,
R/o : At present Newasa (Bk.)
Tal. : Newasa,Dist. Ahmednagar.
ig .... PETITIONER
VERSUS
1. Sanjay Sukhdeo Gaikwad
Age : 26 Yrs., Occ. Service
& Agril., R/o : Taklibhan,
Tal. : Shrirampur, Dist.
Ahmednagar.
2. The State of Maharashtra .... RESPONDENTS
.............................
Mr. D.R.Adhav, Advocate for Petitioner.
Mr. A.D.Kasliwal, Advocate for R - 1.
Mr. P.N.Kutti, A.P.P. for R - 2 - State.
..............................
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2 Cr. W.P. 207.2004 - [ J ]
CORAM : Z.A.HAQ, J.
DATE OF JUDGMENT : 18th NOVEMBER, 2016
.............................
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard Mr. D.R.Adhav, learned Advocate
for Petitioner, Mr. A.D.Kasliwal, learned Advocate
for Respondent No. 1/husband and Mr. P.N.Kutti,
learned A.P.P. for respondent No. 2 - State.
3. The petitioner/wife had filed application
u/s 125 of the Code of Criminal Procedure, which
was allowed by the learned Magistrate by the
Judgment dated 07/12/2001 and the husband was
directed to pay ` 500/- [Rupees Five Hundred] per
month towards maintenance to the wife. This order
was challenged by the husband in the Revision
before the Sessions Court. The Revision Application
is allowed by the Sessions Court by the impugned
Judgment.
3 Cr. W.P. 207.2004 - [ J ]
4. The learned Additional Sessions Judge has
allowed the Revision Application, observing that the
dispute between the parties is amicably worked out
and in the petition filed u/s 9 of the Hindu Marriage
Act bearing No. 45/1999, a pursis (Exh.11) was
moved and along with it a divorce deed was
produced, which stated that the divorce had taken
place and the parties were at liberty to perform
another marriage and in view of these facts, the
order passed by the learned Magistrate granting
maintenance was required to be set aside.
5. The submission on behalf of the
petitioner/wife is that the alleged divorce deed, on
which the learned Additional Sessions Judge has
relied, has no legal sanctity and the order passed by
the Magistrate directing respondent No. 1/husband
to pay maintenance could not have been set aside
relying on such document.
6. Learned Advocate for respondent No.
1/husband has submitted that even if the divorce
4 Cr. W.P. 207.2004 - [ J ]
deed is not considered, fact remains that the wife
resided separately from the husband of her own
volition and, therefore, she was not entitled for the
maintenance. To support the submission, the learned
Advocate has relied on the Judgment given in the
case of Vitthal Hiraji Jadhav Vs. Smt. Hamabai
Vitthal Jadhav & Anr. reported in 2003 ALL MR
(Cri.) - 1094.
7. I find that the learned Additional Sessions
Judge has not adverted to the relevant points and
has allowed the Revision Application on the pre-
supposition that legal and valid divorce has taken
place between the parties. Learned Additional
Sessions Judge has not considered whether
document notarized before a Notary has the effect of
terminating the marital ties between the parties.
The learned Advocate for respondent No.
1/husband has argued that as the wife has been
residing separately of her own volition and without
any reason, she is not entitled for maintenance. This
point was neither raised before the Sessions Court
5 Cr. W.P. 207.2004 - [ J ]
nor it is considered by the learned Additional
Sessions Judge.
8. In the above facts, in my view, the
impugned order is required to be set aside and the
matter has to be remanded to the Sessions Court for
considering it afresh. Hence, the following order:
(i)
ig The impugned Judgment is set aside.
(ii) The matter is remitted to the Court of the
learned Sessions Judge, Newasa for fresh decision
according to law.
(iii) As the order passed by the learned
Judicial Magistrate First Class, Newasa, District
Ahmednagar was set aside on 30/12/2003, the
petitioner/wife will not be entitled to enforce/execute
the order passed by the learned Magistrate until
appropriate orders are passed by the Sessions Court
in the matter.
6 Cr. W.P. 207.2004 - [ J ]
(iv) In the circumstances, parties to bear their
own costs.
(v) Rule is made absolute in the above terms.
[Z.A.HAQ, J.]
KNP/Cr. W.P. 207.2004 - [ J ]
