Bombay High Court
Kishor Fulchand Pawar vs Nanda Kishor Pawar on 25 September, 2024
2024:BHC-AUG:23068
978-wp-250-2008.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 250 OF 2008
Mr. Kishor Fulchand Pawar,
Age : 28 years, Occu. At present Nil,
Residing at - 32/19, Indira Nagar Upper
Bibvewade, Pune-37. ..Petitioner
VERSUS
Mrs. Nanda @ Komal Kishor Pawar,
Age - 27 years, Occu. Household,
Residing at - C/o. Madhukar Jadhav
At/Post - Belwadi, Taluka - Lohara,
District - Osmanabad. ..Respondent
...
Advocate for Petitioner : Mr. Gopal C. Navandar
Advocate for Respondent : Mr. Prashant K. Deshmukh
...
CORAM : S.G. MEHARE, J.
DATED : SEPTEMBER 25, 2024
JUDGMENT :
-
1. Heard learned counsel for the applicant and learned
counsel for the respondent.
2. The respondent/wife had filed an application under
Section 125 of the Criminal Procedure Code for maintenance against
the petitioner/husband on the allegations that she was ill-treated
since she was unable to procure a child due to thyroid. She filed the
application on 21.11.2005. However, during the pendency of the
application under Section 125, the facts came before the learned
Magistrate that the decree of divorce under Section 13(1)(ia) of the
978-wp-250-2008.odt
Hindu Marriage Act was passed against the petitioner. These facts
were admitted to both sides. However, the learned Trial Court
ignoring the facts and rights arising out of the divorce to the ex-wife
held that the respondent/wife failed to prove that she was refused
and neglected to maintain and finally dismissed the application. The
respondent/wife preferred a revision against the order of the
Magistrate dated 06.07.2007 in Criminal Revision Application No.167
of 2007. The learned Adhoc Additional Sessions Judge quashed and
set aside the order of the Magistrate by recording the finding that the
learned Judicial Magistrate has brushed aside the subsequent fact of
divorce and her entitlement to the maintenance under Explanation
(b) to sub-section (1) of Section 125 of the Criminal Procedure Code.
On 08.04.2008, he allowed the revision application and directed the
petitioner to pay the monthly maintenance of Rs.1200/- per month
from 21.11.2005.
3. Learned counsel for the petitioner/husband has
vehemently argued that unless the pleading is amended in an
application under Section 125, the Court cannot go into the question
of entitlement of the maintenance to the wife under Explanation (b)
to sub-section (1) of Section 125 of the Criminal Procedure Code. The
learned Magistrate was right in considering the required ingredients
under Section 125 of the Criminal Procedure Code. The
respondent/wife failed to establish that she was refused and
978-wp-250-2008.odt
neglected to maintain by the petitioner/husband. However, the
learned Adhoc Additional Sessions Judge exceeded its jurisdiction and
granted maintenance in the absence of pleadings. However, he fairly
conceded that the divorcee is entitled to the maintenance as provided
under Section 125 of the Criminal Procedure Code. He has referred
to the findings of both Courts and prayed to quash and set aside the
judgment and order of the learned Adhoc Additional Sessions Judge
dated 08.04.2008.
4. Per contra, learned counsel for the respondent/wife has
vehemently argued that in view of the ratio laid down by the Hon'ble
Supreme Court in the case of Rohtash Singh Vs. Smt. Ramendhri and
others, 2000 Cri.L.J. 1498, the respondent/wife being a divorcee is
entitled to the maintenance under Section 125 Explanation (b) to
sub-section (1). He also argued that the learned Revisional Court has
considered the relevant provisions of law and correctly recorded the
findings that the entitlement of the divorcee has been brushed aside
by the Trial Court. He argued that the change in the situation was to
the knowledge of both sides and it was an undisputed fact.
Therefore, her right to claim the maintenance being a divorcee was
accrued. In the circumstances, the Revisional Court did not erred in
law in granting the maintenance.
978-wp-250-2008.odt
5. The first question raised by the learned counsel for the
petitioner is that in the absence of pleading or amending the pleading
about her divorce and entitlement, the Court can consider these facts.
6. The simple rule of pleading is that one party has to aver
the facts and another party has to deny it. Where there is a question
of fact, then rule of pleading is strictly applied. So far as the
proceeding under Section 125 of the Criminal Procedure Code is
concerned, it is a summary proceeding. If prima facie material is
available on record to believe the case under Section 125, the Court
may surely consider it particularly if the facts are admitted.
7. Since there was no dispute about divorce and it was a
ground available for maintenance under Section 125 Explanation (b),
the learned Magistrate could have considered these subsequent
developments. Explanation (b) to sub-section (1) of Section 125 of
the Criminal Procedure Code was dealt with by the Hon'ble Supreme
Court in Rohtash Singh (supra) and recorded the finding in para 9
that on account of the Explanation quoted above, a woman who has
been divorced by her husband on account of a decree passed by the
Family Court under the Hindu Marriage Act, continues to enjoy the
status of a wife for the limited purpose of claiming maintenance
allowance from her ex-husband.
8. There is no dispute on the law that such a right of
divorcee exists till she remarries. There is no such averment that the
978-wp-250-2008.odt
respondent/wife was remarried. In view of the facts of the case and
admitted position, the Court is of the view that the rule of pleading
would not strictly apply in such cases. Therefore, the subsequent
development of divorce has been correctly considered by the learned
Revisional Court. Though the respondent/wife failed to establish that
she was refused and neglected to maintain, the subsequent facts of
divorce gave her a new ground which may be considered during the
pendency of the application and the learned Magistrate ought to have
considered it. The learned Revisional Court has corrected the errors of
law of the Magistrate. However, the learned Revisional Court erred in
granting the maintenance from 21.11.2005. If the right of the wife
was accrued under Explanation (b) to sub-section (1) of Section 125
of the Criminal Procedure Code after the divorce and she was not
entitled to the maintenance on the ground available under Section
125(1), she would not be entitled to the maintenance from the date
of the desertion or filing the petition. Except this error, the judgment
and order of the learned Revisional Court is legal, proper and correct.
In view of the above, the following order is passed :
ORDER
(i) The revision application is partly allowed.
(ii) The order of the learned Adhoc Additional Sessions
Judge, Osmanabad dated 08.04.2008 directing to pay the
maintenance from 21.11.2005 is modified as "the
978-wp-250-2008.odt
respondent/wife was entitled to the maintenance as per the
quantum determined by the Revisional Court from
18.01.2006."
(iii) No order as to costs.
(iv) Record and proceeding be returned to the learned Trial
Court.
(v) Rule is made partly absolute in above terms.
(S.G. MEHARE, J.)
Mujaheed//
