Husband and wife living separately by mutual consent - Wife accepting alimony of Rs. 20,000/- - Wife not entitled to maintenance

BOMBAY HIGH COURT

Before :- J.G. Chitre, J.
Cri. W.P. No. 1581 of 1999. D/d. 14.2.2003.

Vitthal Hiraji Jadhav - Petitioner
Versus
Harnabai Vitthal Jadhav and another - Respondents

For the Petitioner :- Mrs. Anil Agarwal, Advocate.
For the Respondent No. 1 :- None.
For the Respondent No. 2 :- Mr. K.V. Saste, A.P.P.

Bombay High Court

JUDGMENT
J.G. Chitre, J. (Oral) - The petitioner is hereby assailing correctness, propriety and legality of the order, which has been passed by J.M.F.C., Pimpri, in the matter of Misc. Application No. 97/1996, whereby he granted alimony to the tune of Rs. 400/- per month, as well as Rs. 5000/- as cost
of litigation to respondent No. 1 who was the applicant in the said misc. application.
2. The controversy arose when respondent No. 1 Harnabai submitted an application for getting alimony by presenting petition in the said Court by averring that she had married the present petitioner 33 years back at Shiral, Chinchodi, Tal Pathardi, Dist. Ahmednagar. She averred that she lived with the petitioner as his legally wedded wife for 10 years and out of that wedlock a son named Maruti was born. She further averred that thereafter, present petitioner married another woman named Parvatibai Patole and both were living together at Chembur, Mumbai. She again averred that even thereafter, the present petitioner married yet another woman named Mayadevi Kamble at Mumbai. She averred that she made her best to cohabit with him, but he refused and therefore, she is living neglected and not maintained by her husband. She happens to be entitled to receive alimony from him as she does not have any source of livelihood for maintaining herself.
3. The present petitioner averred that in the year 1993, he paid Rs. 20,000/- to respondent No. 1 and they were divorced in view of customary system of divorce, which happens to be prevalent in their community known as "Mahar". He further averred that by virtue of said agreement, respondent No. 1 had given up her right of claiming future maintenance and their marital relations were disconnected. He also averred that respondent No. 1 is trying to extract money by putting pressure on him of a litigation.
4. The learned Magistrate dismissed the contentions raised by the petitioner and concluded that the said document cannot be treated as a lawful divorce document and therefore, the present petitioner cannot avoid the liability of paying alimony to his wife, present respondent No. 1. He passed the order, mentioned above, which is the subject matter of challenge in this petition.
5. Against the order of the learned Magistrate, Revision Application was preferred by the present petitioner in the Sessions Court, which was decided by 3rd Additional Sessions Judge, Pune (Criminal Revision Application No. 392/1998). The learned 3rd Additional Sessions Judge, Pune confirmed the order, which was passed by the Magistrate by dismissing the revision petition, which is the subject-matter of challenge in this petition.
6. Mrs. Anita Agarwal, Counsel for the petitioner submitted that the said document is a document of customary divorce and therefore, unless contrary is proved, it will have to be treated to be so. In addition to that she submitted that by virtue of said agreement, both petitioner and respondent No. 1 are residing separately by mutual consent and therefore, respondent No. 1 is not entitled to get any alimony from the petitioner. She pointed out that by virtue of the said agreement, Rs. 20,000/- was given by the present petitioner to the respondent No. 1 and that may kindly be considered. Shri Saste submitted that the appropriate legal order needs to be passed in this matter in the interest of justice.
7. The learned Magistrate lost sight of the provisions of section 125(4), which provide that, no wife shall be entitled to receive an alimony from her husband under this section, if she is living an adultery, or that without sufficient reason refuses to live with her husband, or if, they are living separately by mutual consent. This Court does not wish to enter into the controversy in respect of the authority of the said document as legal divorce, because, that pertains to the domain of Family Courts and away from the jurisdiction of this Court, so far as present roster is concerned. One thing, is very clear as indicated by the said agreement of which the learned magistrate has taken the cognizance that both the petitioner and respondent No. 1 entered into that agreement voluntarily and that agreement was supported by payment of a consideration for settling the claim of respondent No. 1 towards alimony receivable from the present petitioner. At least said document will have to be treated, as document indicating mutual consent to live separately as contemplated by provisions of sub-section (4) of section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience).
8. When the husband and wife are residing separately by mutual consent, such wife loses the right to claim alimony from such husband, in view of provisions of sub-section (4) of section 125 of the Code. The language of sub-section (4) is very clear on this point and there is no scope to deviate from it. The learned Magistrate has obviously committed a legal error and his order is suffering from legal infirmity. The order, which is suffering from legal infirmity cannot be permitted to survive for a moment. Thus, it will have to be quashed by allowing this petition by issuing a writ of certiorari in favour of the petitioner. Thus, petition stands allowed. Both the order in Misc. Application No. 97/1996 and Criminal Revision Application No. 392 of 1998 stand quashed with no order as to costs.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.

Petition allowed.

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