@JUDGMENTTAG-ORDER
G. Yethirajulu, J.@mdashThis Revision Case has been filed by the petitioner in M.C. No. 41 of 2000 on the file of the II Additional Judicial Magistrate of First Class, Bhimavaram.
2. The parties herein are referred to as they are arrayed in the maintenance case. The petitioner filed the Maintenance Case for granting of maintenance and the trial Court granted Rs. 250/- towards maintenance per month after examining the evidence placed by both parties. Being aggrieved by the same, the respondent filed C.R.P. No. 89 of 2001 before the II Additional Sessions Judge, West Godavari at Eluru and the learned Sessions Judge allowed the C.R.P. by setting aside the order of the trial Court in M.C. No. 41 of 2000.
3. Being aggrieved by the same, the petitioner preferred the present Revision Case contending that the Revision Court ought to have seen that the divorced wife is also entitled for maintenance; that the divorce deed was obtained behind the back of the petitioner and that there is no valid divorce as there is no custom in their caste, therefore, requested to allow the Revision Case by setting aside the order passed by the Revision Court.
4. The averments made by the petitioner in M.C. No. 41 of 2000 are briefly as follows:
The marriage between the petitioner and the respondent was performed about 30 years back. She lead happy marital life and during the wedlock, she gave birth to one daughter by name Venkata Lakshmi Kumari. The respondent is addicted to vices and neglected the petitioner and her daughter. The marriage between the petitioner and the respondent is subsisting. The respondent, at the instigation of his parents, married one Venkatanarasamma of Vankayalapalem. The respondent was the close relative of the petitioner''s mother and due to love and affection, gold was given to the petitioner, but the respondent sold away the said gold and purchased Ac.1-70 cents of land in Anakoderu Village and also purchased an extent of 8 cents of house site and constructed a two portion tiled house. The second female child was born and the said child died about one month after the birth. The respondent intentionally refused and neglected to maintain the petitioner and her daughter and necked her out. Since then, the petitioner is residing at her parents'' house. Her father became old and he is unable to do any work to maintain his family. The petitioner was suffering from nurves weakness and severe head ache. Due to financial problem, she is unable to meet the medical expenses, therefore, she could not undergo any treatment. The respondent got sufficient properties to maintain the petitioner and her daughter. She gave a legal notice, for which the respondent gave a reply with false allegations. The petitioner has no properties and she is unable to maintain herself. The respondent, in addition to the land, cultivating an extent of Acs.5-00 as cultivating tenant and doing money lending business, milk business, hiring double bullock cart etc. The respondent also rented his house for Rs. 250/- per month and he is earning about Rs. 1,00,000/- per annum, therefore, the petitioner requested to grant maintenance at Rs. 1,500/- per month.
5. The respondent filed the counter with the following averments in brief:
The petitioner is the wife of the respondent. The other allegations in the petition are false. Eversince the marriage, there was no proper understanding between the petitioner and the respondent. In the year 1970, the petitioner and the respondent agreed to dissolve the marriage and the petitioner received Rs. 1,400/- towards full settlement of her maintenance. Eversince, the petitioner has been living separately from the respondent and there is no connection between them. The petitioner has no right to demand any maintenance from the respondent. The divorce deed, dated 30-08-1970 indicated that in full settlement of the maintenance from the respondent, the petitioner and her daughter agreed for the same. The daughter of the petitioner was married about 15 years back. The petitioner is, therefore, not entitled for maintenance.
6. In order to prove the contentions, the petitioner examined PWs.1 and 2 and marked Exs.P-1 and P-2. The respondent examined RWs.1 and 2 and marked Ex.R-1. After considering the evidence on record, the trial Court granted maintenance.
7. The petitioner was examined as PW-1. In her cross examination, she admitted that she lived with the respondent for six years after marriage. Later, there were ill-feelings between them. She further admitted that she has taken divorce on 30-08-1970 in the presence of the elders under Ex.R-1 agreement and the respondent paid Rs. 1,400/- towards maintenance for full and final settlement of the alimony. She also admitted that she affixed her left hand thumb impression on Ex.R-1.
8. The respondent, in his evidence, as RW-1 stated his relationship with the petitioner and their daughter Venkata Lakshmi Kumari. The petitioner and himself were separated through elders after executing Ex.R-1, divorce deed. He did not possess any properties and was not doing any money lending business.
9. RW-2, an elder to the mediation, stated that a mediation was held in the presence of the elders and they decided to settle the matter by granting divorce on condition of the respondent paying Rs. 1,400/- to the petitioner and her daughter towards full and final settlement and he signed on Ex.R-1 along with elders.
10. The trial Court observed that Ex.R-1 is not valid under law. Though there is Ex.R-1 dissolution agreement, it is not a valid document. There is no customary divorce in their caste. The fact that the petitioner and the respondent were living separate for the last thirty years will not absolve the respondent from maintaining his wife, therefore, the petitioner is entitled to claim maintenance from the respondent. Accordingly, the trial Court awarded Rs. 250/- per month towards maintenance to the petitioner.
11. The Revision Court observed that it is bounden duty of the petitioner to prove that she is entitled for maintenance. The defence taken by the respondent is that there was divorce between the parties in the year 1970 through the elders. The petitioner conceded execution of the agreement, which is the final settlement of the alimony to her and her daughter and the respondent married Venkatanarsamma after the divorce with the petitioner. Though the petitioner had knowledge that he married another woman, she kept quite, therefore, it can be presumed that Ex.R-1 is valid and true document. The petitioner is living separate with the respondent by mutual consent. The petitioner and the respondent had agreed to live separately by mutual consent as per Section 125(4) of Cr.P.C. No wife is entitled for maintenance if she is living away by way of mutual consent and as the present case comes within the purview of Section 125(4) of Cr.P.C. and as the petitioner received Rs. 1,400/- towards permanent alimony, she is not entitled for maintenance. Hence, the Revision Petition was allowed by setting aside the order of the trial Court.
12. The learned Counsel for the respondent, in support of his contentions that by virtue of Ex.R-1, divorce deed, the petitioner is not entitled for maintenance by virtue of Section 125(4) of Cr.P.C., relied on the following judgments:
In Amarendra Nath Bagui v. Gouri Rani Bagui 1990 CRI.L.J. 2415 the Calcutta High Court, while considering the scope of Section 125(4) of Cr.P.C., held that in case of the wife and husband living separate on account of the common desire of the husband and wife to live separately by virtue of the outcome of a free agreement between the parties and when the parties were living separately on mutual consent, the wife is not entitled for maintenance u/s 125(4) of Cr.P.C.
In Mallaiah v. Smt. G.S. Vasantha Lakshmi and Ors. 1997 (1) ALT (Cri.) 295 (Karn.), the Karnataka High Court held that Section 125(4) of Cr.P.C. disentitles a wife to claim maintenance, when the husband and wife live separately by mutual consent. A wife living separately from her husband by consent cannot enforce her right and ask for maintenance u/s 125 of Cr.P.C.
In Rohtash Singh v. Smt. Ramendri 2000 (2) ALT (Cri.) 285 (SC) the Supreme Court observed that:
The claim for maintenance under the first part of Section 125 of Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125, Cr.P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to maintenance allowance as a divorced wife u/s 125, Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife.
13. Though the learned Counsel for the respondent cited the above judgments, they are the decisions rendered by the learned single Judges of the respective High Courts. But, the following decisions of the learned single Judges and Division Benches of various High Courts and Supreme Court took a contrary view, which was projected by the learned Counsel for the petitioner in support of his contention that Ex.R-1 agreement is not binding on the petitioner as there was no custom in the community; that even if an amount of Rs. 1,400/- is paid towards permanent alimony, it is a negligible amount and as the petitioner has no means to maintain herself and as she is more than 50 years old, the respondent is liable to pay maintenance.
In Srikanta Padhy v. Prabasini Dixit @ Padhy 1997 (2) Crimes 86 the Orissa High Court, while considering the scope of Section 14(5) of Cr.P.C., held that the petitioner''s pleaded that the spouse is not entitled for maintenance on account of mutual agreement between them before panchayat, such agreement is void since the object is unlawful and could not be legally used as a defence in maintenance petition.
In Ramasami v. Rukmani and Anr. 1995 (3) CRIMES 558 the Madras igh Court held that an Agreement executed between the wife and husband accepting a lumpsum amount towards future maintenance must be equitable and to serve the purpose for which it was executed. The maintenance of Rs. 3,000/- agreed to be paid to the wife at the time of execution of the release deed may not be sufficient for her maintenance even for one year, therefore, the wife is entitled to invoke Section 125 of Cr.P.C.
In
The payment of illusory amounts by way of customary of personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate the right unless it is a reasonable substitute. The Court further observed that the purpose of the payment under any customary or any personal law must be to obviate destitution of the divorce and to provide her with wherewithal to maintain herself, that the whole scheme of Section 127(3)(b) is manifestly to recognize the substitute maintenance arrangement by lumpsum payment organized by the custom of the community or the personal law of the parties and there must be a rational relation between the sum so paid and its potential as provision for maintenance to interpret, otherwise is to stultify the project.
In Mohd. Ahmed Khan v. Shah Bano Begum AIR 1988 SC 945, the Supreme Court, while approving the decision in BAI TAHIRA''s case (3 supra), observed that the mistake therein with regard to the mehar amount, which is not intended for the maintenance, but is paid only as a mark of respect, the principle therein has been accepted by their Lordships of the Supreme Court. The Court further observed that the lumpsum payment by the husband to his wife towards maintenance cannot be illusory but to meet the real needs of the wife towards her maintenance. It is needless to say that the paltry sum of Rs. 3,000/- will not be sufficient for her till her life time when especially she happens to be a young woman in the early twenties.
In
In Smt. Vanamala v. H.M. Ranganatha Bhatta 1995 (3) Crimes 524, the Supreme Court held that a wife who obtains a divorce by mutual consent and has not remarried cannot be denied maintenance by virtue of Section 125(4) of Cr.P.C.
In Kongini Balan v. M. Visalakshy 1986 (92) Cri L.J. 697 (Ker), the Kerala High Court held that a wife who obtains a divorce by mutual consent cannot be denied maintenance by virtue of Section 125(4) of the Code.
In Krishan Kumar v. Kiran 1 (1991) DMC 248 (MP), the Madras High Court held that the expression ''living separately by mutual consent'' does not cover cases of those living separately due to divorce. The same view was expressed in
14. In the present case, the petitioner has been denying from the beginning that she voluntarily gave Ex.R-1, divorce agreement. Affixing of thumb impression and receipt of Rs. 1,400/- are admitted by her in the cross- examination. Her plea that there is no customary divorce in their community of Kapu is not resisted by the respondent. It is the contention of the petitioner that the alleged document is not admissible in evidence, as there was no customary divorce in the community. By virtue of the said document, the petitioner is alleged to have left the house and was staying with her parents. Since her father was maintaining her all the time, no necessity arose for her to file any maintenance case. Even if Ex.R-1 is taken into consideration and if she is treated as a divorced wife, in the light of the Judgments rendered by the Supreme Court and various High Courts, she is entitled for maintenance when she is unable to maintain herself. It is not the contention of the respondent that the petitioner has means of livelihood.
15. Section 125 of Cr.P.C. provides a swift and cheap remedy against any person who, despite means, neglects or refuses to maintain his wife, which includes a woman after divorce who has not remarried, his minor or major child, either legitimate or illegitimate, his father or mother when they are unable to maintain themselves. The primary object of the Section is to prevent starvation of vagrancy. It is a measure of social justice falling within the constitutional sweep of Article 15(3) and 39 of the Constitution enacted to protect the weaker Sections of the community. The object is to compel a man to perform the moral obligation which he owes to society in respect of his wife, children and parents so that they are not left beggared and destituted on the scrap-heap of the society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. By introducing Section 125 of Cr.P.C., the section must receive a liberal interpretation of the sense the words permit. The power to be exercised under this Section is discretionary. The Court has to exercise such discretion in a judicious manner consistent with the language of the constitution by keeping other relevant circumstances.
16. The petitioner expressed her inability to maintain herself on account of the sickness of her father and her old age. When she stretched her hand before a Court of justice by conveying that she is suffering from hunger, she cannot be denied the relief on the ground that the respondent gave a paltry amount of Rs. 1,400/- about 30 years ago to her and she cannot be made to shut her mouth that she agreed to receive the said amount towards permanent alimony undertaking not to claim any further amount.
17. In the light of the above case law and by keeping in view the facts and circumstances of the case, I am of the view that the learned Sessions Judge applied the letter of the law without considering the object behind it, therefore, the order of the learned Sessions Judge lacks rationality and the objectivity and it is liable to be set aside.
18. In the result, the Criminal Revision Case is allowed. The order of the Revision Court in C.R.P. No. 89 of 2001 is set aside by restoring the order of the trial Court in M.C. No. 41 of 2000. The petitioner is at liberty to realize the amount as per the order of the trial Court.
