Bhaskarrao Uttamrao Patil ... vs Sau. Sumanbai @ Kokilabai ...
2017 Latest Caselaw 7862 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                      Criminal Writ Petition No.403 of 2009

        Bhaskarrao Uttamrao Patil (Chopde),
        Aged about 55 years,
        Occupation - Service,
        R/o Rukmini Nagar,
        Near Big Well, 
        Plot No.123,
        Near Santoshi Mata Mandir,
        Kunj Vihar, Nagpur.                                    ... Petitioner

             Versus

        Sau. Sumanbai @ Kokilabai
        Bhaskarrao patil (Chopde),
        Aged about 45 years,
        Occupation - Household,
        At present R/o Khamgaon,
        District Buldana.                                      ...Respondent



        Shri A.D. Dangore, Advocate for Petitioner.
        Ms Mausmi Bagde with Shri A.P. Sadawarte, Advocates for 
        Respondent.


                     Coram : R.K. Deshpande, J.

th Dated : 6 October, 2017

Oral Judgment :

1. The challenge in this petition is to the judgment

order dated 7-2-2009 passed by the learned Principal

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Sessions Judge, Buldana, in Criminal Revision No.51 of

2006, setting aside the judgment and order

dated 28-12-2005 passed by the learned Judicial Magistrate

First Class, Malkapur, District Buldana, in Misc. Criminal

Case No.72 of 2004, rejecting the application for grant of

maintenance. The petitioner claims setting aside of the

judgment and order passed by the Revisional Court and

restoration of the judgment and order passed by the Trial

Court.

2. The petitioner and the respondent got married on

16-2-1975. By way of consent terms reduced in writing on

24-8-1979, the parties decided to live separately and the

respondent-wife agreed not to claim any maintenance.

Thereafter, a notice was issued on 17-5-2004, i.e. after a

lapse of 25 years, by the respondent-wife to the

petitioner-husband calling upon him to pay the monthly

maintenance, which was rejected by the Trial Court and

allowed by the Revisional Court granting maintenance at the

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rate of Rs.700/- per month.

3. The only question involved in the present case is

whether the respondent-wife is disentitled to claim

maintenance in terms of sub-section (4) of Section 125 of the

Criminal Procedure Code. The petitioner relied upon the

consent terms dated 24-8-1979 at Exhibit 39, and this was

disputed by the respondent-wife. The Trial Court holds that

the consent terms are proved, whereas the Revisional Court

holds that the consent terms become unenforceable in view

of Section 5(1) of Hindu Marriage Act, 1955 read with

Section 23 of the Indian Contract Act, 1872.

4. Ms Mousmi Bagde, the learned counsel appearing

for the respondent-wife, has relied upon the decision of the

Division Bench of this Court in the case of Geeta Satish

Gokarna v. Satish Shankarrao Gokarna, reported in

2004(3) Mh.L.J. 159, to urge that this Court has laid down

that the wife is entitled to maintenance even if in the consent

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terms she had agreed not to claim maintenance. She has

further relied upon the decision of the learned Single Judge

of this Court in the case of Ashabai Himmatrao Junghare v.

Himmatrao Kisanrao Junghare, reported in

2007(1) Mh.L.J. 802, wherein it is held that the fact that the

wife did not claim any maintenance from 1973 to 2001 will

not disentitle her from claiming maintenance.

5. Shri Dangore, the learned counsel appearing for the

petitioner, has relied upon the decision of the Apex Court in

the case of Deb Narayan Halder v. Anushree Halder, reported

in 2004(1) Bom.C.R. (Cri.) 949, and the decision of the

learned Single Judge of this Court in the case of

Sow. Sumanbai Ramesh Garje & Anr. v. Ramesh Dagadu Garje,

reported in 2014 All MR (Cri) 3710, to urge that the wife

becomes disentitled to maintenance under sub-section (4) of

Section 125 of the Criminal Procedure Code.

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6. In the present case, this Court is not concerned with

the entitlement of the wife for maintenance under

Section 25(1) of the Hindu Marriage Act, which does not

contain any provision similar to one under sub-section (4) of

Section 125 of the Criminal Procedure Code. The proposition

of law laid down in Geeta's case, cited supra, therefore, does

not apply to the facts of the present case. So far as another

decision of the learned Single Judge of this Court in

Ashabai's case, is concerned, the proposition laid down

therein that though the wife did not claim any maintenance

from 1973 to 2001, the same will not disentitle her from

claiming maintenance, also cannot be disputed. However, in

the present case, this Court is concerned with the wife living

separately from her husband by mutual consent and without

sufficient cause or reason. This was not the position reflected

in the judgment in the case of Ashabai. Hence, the said

decision is also not applicable to the facts of the present case.

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7. In terms of sub-section (4) of Section 125 of the

Criminal Procedure Code, a clear case is made out on the

basis of the agreement at Exhibit 39 dated 24-8-1979, which

is proved in support of the case that the wife has been

residing separately from her husband without sufficient cause

or reason or has refused to live with the husband or that she

is living separately by mutual consent. In view of the law

laid down by the Apex Court in the case of Deb Narayan, and

by this Court in the case of Sumanbai, cited supra, the wife

becomes disentitled to claim maintenance on this count.

A period of 25 years has lapsed and the petitioner-husband

has remarried and he got three children from his remarriage.

The learned Judge of the Trial Court failed to see that this

was a case under Section 125(4) of the Criminal Procedure

Code and unless the said provision is struck down, it has to

be given effect to.

8. In the result, the petition is allowed. The judgment

and order dated 7-2-2009 passed by the learned Principal

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Sessions Judge, Buldana, in Criminal Revision No.51 of

2006, is hereby quashed and set aside. The judgment and

order dated 28-12-2005 passed by the learned Judicial

Magistrate First Class, Malkapur, District Buldana, in Misc.

Criminal Case No.72 of 2004, is restored.

9. Rule is made absolute in the aforesaid terms. No

costs.

JUDGE.

Lanjewar