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Popat Kashinath Bodke Petitioner v. Kamalabai Popat Bodke And Others S
Factual and Procedural Background
The petitioner and his wife, Kamalabai Popat Bodke, executed a deed titled “Pharkatnama” on 28-7-1989 as part of a settlement. This deed stated that they would no longer live as husband and wife, effectively divorcing by a customary system. The petitioner challenged an order directing him to pay alimony to Kamalabai, arguing that she relinquished her rights to maintenance and property under the deed. The order under challenge was passed by the JMFC, Nasik in Criminal Application No. 157 of 1991 and subsequently upheld by the Additional Sessions Judge, Nasik in Criminal Revision Petition No. 207 of 1993.
Legal Issues Presented
- Whether the “Pharkatnama” deed executed by the spouses can be considered a valid document evidencing divorce or a relinquishment of maintenance rights.
- Whether Kamalabai is entitled to maintenance under Section 125 of the Criminal Procedure Code despite the deed.
- Whether living separately by mutual consent, as expressed in the deed, precludes the wife’s right to claim alimony under Section 125(4) of the Code.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner and his wife executed a deed (“Pharkatnama”) declaring divorce by customary system and mutual separation.
- Under paragraph 3 of the deed, the wife relinquished her rights to maintenance and property.
- The order directing payment of alimony was unjustified as the parties were living separately by mutual consent.
Respondent’s Arguments
- The wife is entitled to maintenance under Section 125 of the Criminal Procedure Code, 1973.
- The wife can file a fresh application for alimony whenever needed.
- The “Pharkatnama” cannot be treated as a legal document of divorce.
- The impugned order directing alimony payment is justified.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court analyzed the “Pharkatnama” deed in light of Section 125(4) of the Criminal Procedure Code, which disqualifies a wife from alimony if the spouses live separately by mutual consent. Although the deed was not registered as required by Section 17 of the Registration Act and its status as a divorce document could be debated, the Court found it could be used for collateral purposes to establish mutual consent for separation.
The Court emphasized that the intention of the spouses expressed in such an agreement must be ascertained by examining the language and context of the document as a whole. If the document indicates permanent separation by mutual consent and has been acted upon, then under Section 125(4), the wife loses the right to claim maintenance after the date of the agreement, provided appropriate provisions for maintenance have been made.
Applying this principle, the Court concluded that the parties had clearly expressed their intention to live separately by mutual consent through the executed agreement, and this intention had been acted upon. Consequently, the order directing alimony was inconsistent with this legal position.
Holding and Implications
The Court allowed the petition and quashed the order passed by the JMFC, Nasik in Criminal Application No. 157 of 1991 as well as the order passed by the Additional Sessions Judge, Nasik in Criminal Revision Petition No. 207 of 1993.
The direct effect of this decision is that the petitioner is relieved from the obligation to pay alimony to Kamalabai on the basis of the mutual separation expressed in the “Pharkatnama.” No new precedent was established beyond the application of existing statutory provisions to the facts of this case.
The Judgment of the Court was delivered by
J.G Chitre, J.— Heard both the advocates at length.
2. Shri Kankaria submitted that on 28-7-1989 both the petitioner and his wife in pursuance of a settlement executed a deed, which has been titled as “Pharkatnama”. Para 3 of the said deed unequivocally declared that after the said deed they were not to have relations as husband and wife as they were divorcing each other by customary system. Shri Kankaria further submitted that by the said para 3, wife Kamalabai Popat Bodke relinquished her right in context with maintenance and the property. Shri Naiknavare submitted that Kamalabai is entitled to get maintenance in view of S. 125 of the Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience) and she is entitled to file fresh application whenever she needs alimony. He submitted that the said document cannot be treated to be a legal document of divorce. He justified the order, which has been put to challenge by the petitioner by this writ petition.
3. Sub-s. (4) of S. 125 of the Code provides that:
“125. (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”
4. There may be a debate in context with the said document and its value as a document of divorce. There may be a debate whether it may be accepted as a relinquishment deed in respect of her right over alimony and property on account of it being not registered as required by the provisions of S. 17 of the Registration Act, but it can be used for collateral purpose and it would be unequivocally heralding that after the said deed both the petitioner and said Kamalabai were separating from each other by mutual consent. When that was so, the learned Magistrate should have kept in mind the provisions of S. 125(4) of the Code and should not have passed an order directing the petitioner to give her alimony because, it is not a disputed fact that after the said deed was executed, they are residing separately by mutual consent.
5. When the spouses entered into an agreement after matrimonial dispute, the texture of the document is to be seen. Words and sentences used are to be considered. Intention expressed by the language of the document has to be noted and the Court should come to a conclusion as to what the spouses are expressing by such agreement and document executed between them. The document may be a document of customary divorce, the document may be for the purpose of giving a lump sum amount to the wife as alimony or the document may be for residing separately permanently and adjusting the assets and liabilities of the pair. The agreement has to be read as a whole and the Court has to come to an appropriate conclusion. If by such an agreement or document the spouses are expressing to live separately by consent, it has to be considered appropriately in matrimonial cases. If the spouses are residing separately permanently by consent, then in view of S. 125(4) CrPC the wife would not be having a right to claim alimony from the husband after the date of execution of the said agreement if that agreement has been acted on and appropriate provision for maintenance has been made.
6. Thus, in the present case the agreement which has been executed by the spouses is clearly heralding their intention to live separately by mutual consent and which has been acted on. Therefore, this petition will have to be allowed and the order which has been passed by JMFC, Nasik in Criminal Application No. 157 of 1991 which has been assailed by the petitioner stands quashed. Resultantly the order which has been passed by the Additional Sessions Judge, Nasik in Criminal Revision Petition No. 207 of 1993 stands quashed.
7. Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.
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