Gajanan Shankar Darade vs Sau. Savita Gajanan Darade And 2 ...
2017 Latest Caselaw 2203 Bom

REVN  89/14                                               1                       Judgment


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.
                   CRIMINAL REVISION NO. 89/2014 
Gajanan Shankar Darade,
Aged about 33 years, Occ: Service,
R/o Mandva, Tq. Lonar,
District:Buldhana.
(Presently working at Police
Station, Beltur, Tahsil:Kuhi,
District:Nagpur.                                                               APPLICANT

                                       .....VERSUS.....

1.      Sau.Savita Gajanan Darade,
        Aged about 29 years, Occ:Household.
2.      Ku.Pallavi Gajanan Darade,
        Aged about 10 years.
3.      Prem S/o Gajanan Darade,
        Aged about 7 years.
The respondent nos.2 and 3 being minor
through her mother.  
All resident of C/o Shivaji Shriram Kayande,
Deulgaon Kale, Tq. Sindkheda,
P.St. Lonar, District:Buldana.                                             NON-APPLICA
                                                                                       NTS

                    Mrs. R.S. Sirpurkar, counsel for the applicant.
                    Shri P.B. Patil, counsel for the non-applicants.

                                                    CORAM : N.W. SAMBRE, J. 

                                                    DATE   :   4  TH     MAY  ,    2017. 
ORAL JUDGMENT   

The present revision is by the husband against the non-

applicant no.1-wife and two minor children questioning the legality and

validity of the order, dated 24.09.2013 passed in Criminal Revision No.47

of 2009 by the Additional Sessions Judge, Mehkar, wherein the judgment

delivered by the Judicial Magistrate (First Class), Lonar in Criminal Case

REVN 89/14 2 Judgment

No.79 of 2008 came to be set aside and it was ordered that the present

applicant to pay an amount of Rs.1,500/- for each of the claimant with

effect from 03.01.2008.

2. The present applicant, a public servant, working as a

police constable in the Police Department, was married to the present

non-applicant no.1 on May 9, 2002, out of which wedlock, the non-

applicant nos.2 and 3 are born. The non-applicant no.1 along with the

present applicant filed Hindu Marriage Petition No.139 of 2010 on

August 12, 2010 under Section 13-B of the Hindu Marriage Act for

divorce by mutual consent. It is claimed by the non-applicant no.1 in the

said proceedings that she had received one time alimony of

Rs.3,75,000/-. The said proceedings bearing Hindu Marriage Petition

No.139 of 2010 came to be allowed by the judgment and order

dated March 28, 2011 by the Court of Civil Judge (Senior Division),

Buldana.

3. It is, thereafter, the non-applicant nos.1 to 3 moved before

the learned Judicial Magistrate (First Class), Lonar seeking maintenance

under Section 125 of the Code of Criminal Procedure through

Miscellaneous Criminal Case No.79 of 2008.

REVN 89/14 3 Judgment

4. The learned Magistrate rejected the said claim to the extent

of demand of maintenance in its entirety and directed the present

applicant to pay an amount of Rs.500/- to each of the claimants towards

maintenance. Feeling aggrieved by the quantum, the revision under

Section 397 was preferred bearing Revision No.47 of 2009 which came to

be allowed by the impugned order. As such, this revision by the non-

applicants before the first revisional Court.

5. Heard Mrs.Sirpurkar, the learned counsel for the applicant-

Husband and Shri Patil, the learned counsel for the non-applicants-

claimants. The only important point, which is sought to be canvassed by

the learned counsel for the applicant is that whether it was open for the

non-applicants to initiate the proceedings for claiming maintenance, once

the order under Section 13-B of the Hindu Marriage Act was passed by

mutual consent on payment of one time alimony of Rs.3,75,000/-. So as

to substantiate the claim, the learned counsel for the applicant-Husband

would invite the attention of this Court to the judgment of the learned

Civil Judge (Senior Division) passed in exercise of powers under Section

13-B of the Hindu marriage Act in H.M.P. No.139 of 2010 on March 28,

2011 ordering dissolution of the marriage. She would then urge that this

Court must take notice of the evidence of the non-applicant no.1 as is

placed on record along with acknowledgment of receipt of an amount of

REVN 89/14 4 Judgment

Rs.3,75,000/-. She would then urge that what was agreed by the present

applicant was the payment of Rs.1,500/- to each of the child and not to

the non-applicant no.1, i.e. his wife. For this purpose, she would invite

attention of this Court to the provisions of Section 125 of the Code of

Criminal Procedure.

6. Per contra, the learned counsel for the non-applicants-

claimants, while relying upon the judgment of the Apex Court in the case

of Vanmala (Smt) Versus H.N. Ranganatha Bhatta, reported in (1995) 5

SCC 299 would urge that even if a divorce was obtained by mutual

consent and the non-applicant no.1-Wife was not remarried, in such an

eventuality, the remedy under the provisions of Section 125(4) of the

Code of Criminal Procedure is available to the non-applicant no.1-Wife.

In addition, he would urge that just because there was divorce or

dissolution of marriage by mutual consent in absence of remarriage by

the non-applicant no.1 and the fact that in the compromise it was agreed

that she would not claim any maintenance in future, will not ipso facto

confer any right on the applicant to avoid his statutory liability as

according to the learned counsel, the compromise agreement has to be

read as opposed to the public policy. For the said purpose, he would rely

upon the judgment of the Allahabad High Court in the case of Mahesh

Chandra Dwivedi Versus State of U.P. & Anr., reported in 2009 Cri.L.J.

REVN 89/14 5 Judgment

139. In addition, he would submit that the agreement as to not to claim

any maintenance in future is a void agreement and not enforceable in law

and would draw support from the judgment of the Kerala High Court in

the matter of Rajesh Nair Versus Meera Babu, reported in 2013 Cri.L.J.

3153.

7. Having considered the rival submissions, the issue that falls

for consideration before this Court is, that when the wife had agreed in

the matter of dissolution of marriage under Section 13-B of the Act for

receiving one time alimony of Rs.3,75,000/-, whether she would be

entitled to claim maintenance for herself or for her children, in future.

8. On facts, though Mrs.Sirpurkar, the learned counsel for the

applicant was right in pointing out that an amount of Rs.3,75,000/- was

paid only to the non-applicant no.1-Wife, however, such receipt of one

time alimony cannot be read and stretched to the extent of inferring that

the non-applicant no.1-Wife cannot claim maintenance pursuant to the

provisions of Section 125 of the Code of Criminal Procedure when no

legal deformity is demonstrated. It is an admitted position on record that

the non-applicant no.1-Wife, after dissolution of marriage, has not

remarried, but, is living life along with her two kids, i.e. the non-applicant

nos.2 and 3, for whom, the applicant had agreed to pay maintenance of

Rs.1,000/- which he has not paid.

REVN 89/14 6 Judgment

9. An important issue of which this Court must take note of is,

apart from the agricultural property, the present applicant-Husband is

serving in the Police Department and is drawing monthly salary. The

statute confers right on a party, particularly the wife and her children to

claim maintenance which statutory right is properly invoked by the non-

applicants-claimants.

10. There could be hardly any agreement so as to infer that the

present non-applicant no.1 can give up her statutory right to claim

maintenance, much less, maintenance for the children.

11. In the aforesaid background, the reliance as is placed by the

learned counsel for the non-applicants on the judgment of Vanmala

(Supra) is required to be appreciated.

12. In the aforesaid background, in my opinion, the order of

award of maintenance by the learned Magistrate and enhancement

thereof by the revisional Court cannot be termed to be the one, which is

in failure to exercise the jurisdiction or is in excess of jurisdiction. The

revision as such, lacks merits and stands dismissed.

JUDGE APTE