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Gajanan v. Sheela Gajanan Solanke
Concise Structured Summary of the Opinion (Criminal Revision Application No. 88/2000)
Factual and Procedural Background
The applicant challenged the judgment and order dated 29-2-2000 of the IInd Additional Sessions Judge, Achalpur, which allowed a revision filed by respondent Nos. 1 and 2 against the judgment and order dated 16-4-1998 in Misc. Criminal Case No. 221/1995.
The applicant and respondent No. 1 were married on 5-5-1985. Relations became strained and on 9-12-1988 the applicant and respondent No. 1 executed a mutual deed of divorce and a consent deed (Annexure-A). On 22-11-1995 respondent No. 1, on her own behalf and on behalf of respondent No. 2 (Pratik Solanke, then a minor), filed Misc. Criminal Case No. 221/1995 in the Court of Judicial Magistrate First Class, Daryapur, claiming maintenance of Rs. 500 per month for herself and Rs. 400 per month for respondent No. 2.
At the trial, respondent No. 1 examined herself and the applicant examined himself. By judgment dated 16-4-1998, the Judicial Magistrate First Class dismissed the application for maintenance, holding that it was not proved that the applicant neglected or refused to maintain respondent Nos. 1 and 2; that respondent No. 1 had not proved that respondent No. 2 was the applicant's son; and that respondent No. 1 had the capacity to maintain herself and her son. The Magistrate did, however, find that the applicant had the capacity to provide maintenance.
The Revisional Court (IInd Additional Sessions Judge) reversed the Magistrate's decision by order dated 29-2-2000, holding that a divorced wife is not barred from claiming maintenance despite a consent deed, that relinquishment of maintenance by the wife is not binding on a child born to the divorced wife, and that the applicant had sufficient means. The Revisional Court awarded Rs. 500 per month to respondent No. 1 and Rs. 400 per month to respondent No. 2.
The applicant filed the present criminal revision application challenging the Revisional Court's order dated 29-2-2000.
Legal Issues Presented
- Whether a wife who has executed a mutual deed of divorce and a consent deed in which she agreed to live separately and surrendered her claim to maintenance is precluded from claiming maintenance under section 125 of the Code of Criminal Procedure.
- Whether a child (respondent No. 2), alleged to have been born on 1-3-1989, is entitled to maintenance from the applicant despite the consent deed, and whether the evidence on record supports the Revisional Court's finding that the child is the applicant's son.
- Whether the Revisional Court's interference with the Magistrate's findings (and its award of maintenance to respondent Nos. 1 and 2) was legally justified on the facts and law presented.
Arguments of the Parties
Applicant's Arguments
- The consent deed executed on 9-12-1988 (Annexure-A) shows respondent No. 1 agreed to live separately and to give up her claim for maintenance; therefore she cannot maintain a claim under section 125 CrPC.
- The applicant relied on Clause (c) of sub-section (3) of section 127 CrPC and on judgments of this Court (including 1999 (5) BCR 74 and 1990 Mh. L.J 418) and a Division Bench decision reported in 1995 (5) Bom. C.R. 74 to support the proposition that a wife who accepts divorce by mutual consent and gives up maintenance cannot later claim maintenance under section 125.
- The Revisional Court erred in relying on a Single Judge judgment reported in 1999 (2) B. Cr. C. 354, and the Revisional Court's grant of maintenance to respondent No. 1 was patently illegal in view of the consent deed.
- Concerning respondent No. 2 (the child), the consent deed's failure to mention pregnancy (if the child was born on 1-3-1989) was argued to make it improbable that the child was born out of wedlock and hence the claim for maintenance was not maintainable — the applicant urged an adverse inference from non-mention of pregnancy in the deed.
No detailed, contemporaneous arguments by respondent Nos. 1 and 2 are recorded in the opinion; the court notes that respondent Nos. 2 and 3 were duly served but no one appeared on behalf of respondent Nos. 2 and 3 during hearing of this revision application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 1999 (5) BCR 74 — Smt. Sushilabai w/o Ravan Patil v. Shri Ravan Elji Patil and another | Authority supporting the proposition that where a wife accepts divorce by mutual consent and gives up her claim for maintenance, she is not entitled to claim maintenance under section 125 CrPC. | The court treated the ratio relied upon from this judgment as supporting the applicant's submission and found those submissions well founded in relation to respondent No. 1's claim; this contributed to quashing the Revisional Court's grant of maintenance to respondent No. 1. |
| 1990 Mh. L.J. 418 — Shrawan Sakharam Ubale v. Durga Shrawan Ubale | Authority relied upon for the same principle that a wife who takes divorce by mutual consent and relinquisheth maintenance cannot claim under section 125. | The court considered this judgment among those supporting the applicant's contention and accepted the submission based on that line of authority in setting aside the Revisional Court's award to respondent No. 1. |
| 1995 (5) Bom. C.R. 74 | Division Bench view consistent with the proposition that a wife who voluntarily relinquishes maintenance or agrees to live separately may be barred from claiming maintenance under section 125. | The court noted that this Division Bench decision took a similar view and that the applicant relied on it; this reinforced the court's acceptance of the submission that respondent No. 1's claim should be barred by the consent deed. |
| 1999 (2) B. Cr. C. 354 (Single Judge) | Authority relied upon by the Revisional Court to the effect that a divorced wife is not necessarily debarred from claiming maintenance. | The opinion records that the Revisional Court relied on this Single Judge judgment, but the applicant argued that such reliance was unwarranted in view of the other authorities. The present court accepted the applicant's submissions and set aside the Revisional Court's grant of maintenance to respondent No. 1 (i.e., it did not follow the Revisional Court's reliance on this Single Judge authority for respondent No. 1's claim). |
Court's Reasoning and Analysis
The court conducted a step-by-step analysis confined to the materials and arguments on record.
- Concerning respondent No. 1 (the divorced wife): The court examined the consent deed (Annexure-A) executed on 9-12-1988. It considered counsel's submissions and the line of authority which holds that when a wife, after taking a divorce by mutual consent, voluntarily surrenders her rights to maintenance and agrees to live separately, she cannot maintain a claim under section 125 CrPC. The court explicitly referenced Clause (c), sub-section (3) of section 127 CrPC, and accepted the applicant's reliance on the cited judgments. On this basis the court held that the Revisional Court's grant of maintenance to respondent No. 1 was legally unsustainable and set that portion of the Revisional Court's order aside.
- Concerning respondent No. 2 (the child, Pratik): The court considered the factual dispute whether Pratik was the applicant's son and whether the child was born on 1-3-1989. The court observed that respondent No. 1 had deposed that the child was born on that date and that this testimony had not been effectively dislodged by cross-examination — the applicant had the opportunity but did not cross-examine to challenge the date or paternity. The Magistrate had earlier held there was no oral or documentary evidence to show the child was the applicant's son; the revising court found that to be a perverse finding because it ignored respondent No. 1's unchallenged testimony. The present court agreed with the Revisional Court as to the child's entitlement, noting (a) the absence of cross-examination and contrary evidence from the applicant, (b) the special caution required before passing orders affecting a minor, and (c) that the applicant had not adduced the evidence he could have produced. Consequently, the court concluded that the Revisional Court was justified in awarding maintenance of Rs. 400 per month to respondent No. 2.
- On the applicant's contention that the absence of any mention of pregnancy in the consent deed mandates an adverse inference against respondent No. 1: the court rejected that contention. It emphasized that the applicant had a full opportunity to cross-examine and lead evidence to contradict respondent No. 1's testimony but failed to do so; therefore the court would not draw the adverse inference suggested by the applicant from the non-mention of pregnancy in the deed.
- Procedural posture: The court heard learned counsel for the applicant and the Additional Public Prosecutor for respondent No. 3; it recorded that no one appeared for respondent Nos. 2 and 3 despite service.
Holding and Implications
Holding:
Application partly allowed.
The court set aside the Revisional Court's grant of maintenance to respondent No. 1 (the divorced wife) — in other words, the part of the Revisional Court's order dated 29-2-2000 that awarded Rs. 500 per month to respondent No. 1 was quashed and set aside. The court, however, maintained the Revisional Court's award of maintenance of Rs. 400 per month to respondent No. 2 (the minor child).
Implications:
- The direct effect on the parties is that respondent No. 1 will not receive the Rs. 500 per month previously awarded by the Revisional Court, while respondent No. 2 will continue to receive Rs. 400 per month as maintenance.
- The court's order is based on application of existing authorities and the specific facts and evidence (or lack of cross-examination) in this record. The opinion does not state that it is establishing a new legal precedent; rather it applies and prefers the cited line of authority that a wife who voluntarily relinquishes maintenance in a consent deed cannot claim under section 125, while upholding the child's separate entitlement based on the unchallenged evidence of paternity in this case.
Disposition recorded in the opinion: "Criminal revision application No. 88/2000 is partly allowed" and "Criminal Revision Application is disposed of in the aforesaid terms."
This criminal revision application is filed by the applicant challenging the judgment and order dated 29-2-2000 passed by IInd Additional Sessions Judge, Achalpur, allowing revision filed by respondent Nos. 1 and 2 herein against the judgment and order dated 16-4-1998 in Misc. Criminal Case No. 221/1995.
2. I have heard Mr. Samel learned counsel for the applicant and Mr. Ahirkar, learned Additional Public Prosecutor for respondent No. 3. None appeared on behalf of respondent Nos. 2 and 3 though they were duly served.
3. The applicant married respondent No. 1 on 5-5-1985. Thereafter, relations between the husband and wife got strained, and ultimately on 9-12-1988 the applicant and respondent No. 1 executed mutual deed of divorce as well as separate consent deed, which is at Annexure-A. Respondent No. 1 on her behalf and on behalf of respondent No. 2, who was a minor, filed Misc. Criminal Case No. 221/1995 in the Court of Judicial Magistrate First Class, Daryapur, claiming maintenance of Rs. 500/- per month for herself and Rs. 400/- per month for respondent No. 2- Pratik Solanke. The application was filed on 22-11-1995. In the said case, respondent No. 1 examined herself and applicant examined himself in support of their case. The learned Judicial Magistrate First Class by the judgment and order dated 16-4-1998 dismissed the application filed by respondent Nos. 1 and 2 holding that it was not proved that the applicant has neglected and refused to maintain respondent Nos. 1 and 2 herein. The learned Judicial Magistrate First Class also held that respondent No. 1 had not proved that respondent No. 2 was the son of the present applicant. The learned Judicial Magistrate First Class also held that respondent No. 1 had capacity to maintain herself and her son. The learned Judicial Magistrate First Class however, gave finding that applicant herein was capable of providing maintenance to respondent Nos. 1 and 2. The learned Judicial Magistrate First Class on the basis of evidence on record held that since the husband and wife are separated by consent deed to which the father of respondent No. 1 was a signatory, respondent Nos. 1 and 2 herein had not proved that Pratik was born out of wedlock. The learned Judicial Magistrate First Class held that there was neither oral nor documentary evidence to prove that respondent No. 2 herein is the son of present applicant. The learned Judge was impressed by the fact that in the consent deed there was no specific mention about pregnancy of respondent No. 1 since respondent No. 1 was carrying pregnancy for more than six months having regard to the fact that Pratik was born on 1st of March, 1989. On the basis of evidence on record, learned Magistrate held that respondent No. 1 was capable of maintaining herself and since respondent No. 2 was not the son of the present applicant, the question of providing maintenance did not arise. Accordingly, learned Magistrate dismissed the said application for maintenance filed by respondent Nos. 1 and 2 herein. The Revisional Court, while reversing the judgment and order of the learned Magistrate held that even a divorced wife is not debarred from claiming maintenance in spite of the consent deed or relinquishment of maintenance by respondent No. 1 was not binding on the child born to the divorced wife. Insofar as the capacity to maintain respondent No. 1 and her child is concerned, the Revisional Court gave finding in the negative. The Revisional Court further gave finding that the present applicant had sufficient means to pay maintenance allowance to respondent Nos. 1 and 2. Accordingly, the revision was allowed and maintenance of Rs. 500/- per month was granted in favour of respondent No. 1 and maintenance of Rs. 400/- per month was awarded in favour of respondent No. 2.
4. Mr. Samel, learned counsel appearing for the applicant, at the outset, invited my attention to Annexure-A, which was produced in the course of evidence before the Court of Judicial Magistrate First Class, which is the consent deed signed by the applicant and respondent No. 1 herein. According to Mr. Samel, in terms of said consent deed respondent No. 1 has given up her claim for maintenance and agreed to live separately from the date of execution of the said deed dated 9-12-1988. In view of this document, learned counsel for the applicant submits that the finding of the Revisional Court is patently illegal. According to learned counsel for the applicant, if the wife after executing document of divorce and mutual separation, she was not entitled to claim maintenance in terms of section 125 of Code of Criminal Procedure. The learned counsel invited my attention to Clause (c) of sub-section (3) of section 127 of Code of Criminal Procedure, which reads as under:—
“Section 127(3): Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—
(a) …….
(b) …….
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.”
5. Mr. Samel has further relied on two judgments of this Court in support of his submission that if wife accepts that there is divorce by mutual consent on certain terms and conditions, and she gives up her claim for maintenance past and future, an application for claiming maintenance under section 125 of Code of Criminal Procedure is not maintainable. Reliance has been placed by Mr. Samel, learned counsel appearing for applicant on the judgments of this Court reported in 1999 (5) BCR 74, Smt. Sushilabai w/o Ravan Patil v. Shri Ravan Elji Patil and another judgment of this Court reported in 1990 Mh. L.J 418, Shrawan Sakharam Ubale v. Durga Shrawan Ubale. Relying upon the said two judgments, Mr. Samel submits that in case wife takes divorce from her husband and starts living separately by mutual consent, then the wife is not entitled to claim maintenance from her husband. The learned counsel drew my attention to the judgment of this Court reported in 1995 (5) Bom. C.R 74 (supra) which has relied upon Division Bench judgment of this Court taking similar view. According to learned counsel, in view of these two judgments, more particularly the judgment of Division Bench of this Court reliance placed by the Revisional Court on judgment passed by the learned Single Judge reported in 1999 (2) B. Cr. C. 354 (supra) is unwarranted. The learned counsel appearing for applicant points out that no reference has been made to two judgments relied upon by him in the judgment given by the Additional Sessions Judge. According to learned counsel, on a plain reading of consent deed, which is on record, it is evident that respondent No. 1 has agreed to stay separately from the present applicant and has agreed not to claim any amount by way of maintenance or otherwise in future from the present applicant. According to learned counsel, the said document has been duly proved and in view of the said document, only conclusion that can be drawn is that respondent No. 1 has given up her right to claim future maintenance. The learned counsel also drew my attention to the fact that in the said deed, it is mentioned that an amount of Rs. 500/- and whatever ornaments given in marriage were returned by the applicant to respondent No. 1. Relying on the said consent deed, Mr. Samel submits that respondent No. 1 cannot claim any maintenance from the applicant and to that extent, the Revisional Court was legally not justified in interfering with the judgment and order passed by the learned Judicial Magistrate First Class dismissing application filed by respondent No. 1 on her behalf and on behalf of respondent No. 2.
6. In view of ratio laid down in the judgments cited by the learned counsel appearing for the applicant to the effect that if wife after taking divorce from her husband agrees to stay separately and give up her claim of maintenance, the wife is not entitled to claim maintenance under section 125 of Criminal Procedure Code. I am of the opinion that the submissions made by learned counsel appearing for the applicant are well founded and deserve to be accepted. Therefore, the judgment and order passed by the Revisional Court deserves to be set aside insofar the grant of maintenance to respondent No. 1 is concerned.
7. The next question which arises is whether grant of maintenance of Rs. 400/- per month in favour of respondent No. 2, the son of respondent No. 1 is legal and justified. According to learned counsel, having regard to the consent deed, it is conceivable and improbable that the child was born out of wedlock on 1-3-1989. The learned counsel submits that if the statement of respondent No. 1 that Pratik was born on 1-3-1989 is accepted, the only inference which can be drawn is that at the time of execution of consent deed on 9-12-1988, respondent No. 1 was pregnant of over about six months and in that case mention must have been made of the said fact in the consent deed. According to learned counsel appearing for applicant, non-mentioning of this fact in the consent deed that no child was born out of wedlock, and therefore, the claim of maintenance by respondent No. 1 on behalf of respondent No. 2 was not maintainable. In view of the fact that none has appeared on behalf of respondent Nos. 1 and 2, I have given my anxious consideration to the submissions made by the learned counsel for the applicant. From the judgments and orders passed by the Judicial Magistrate First Class as well as by the Revisional Court, it is clear that statement made by respondent No. 1 in her evidence that the child was born out of wedlock on 1-3-1989 has not been dislodged by proper cross-examination except putting suggestion that the child was not born out of wedlock. There is no cross-examination of respondent No. 1 so as to enable this Court to come to the conclusion that the child was not born on 1-3-1989 as stated by respondent No. 1. It was possible for applicant during the course of evidence to bring on record appropriate evidence by cross-examining respondent No. 1. However, the applicant has not chosen to do so. In the absence of any cross-examination, it is difficult for this Court to come to the conclusion that respondent No. 2 is not the son of the applicant. It is pertinent to note that respondent No. 2 was a minor and still continuous to be minor and this Court has to be cautious in passing order against respondent No. 2, who is a minor. The finding of the learned Judicial Magistrate First Class to the effect that there is no oral or documentary evidence to prove the fact that Pratik was born out of wedlock is absolutely perverse. The learned Magistrate has totally lost sight of the fact that respondent No. 1 has deposed that Pratik was born on 1-3-1989 out of wedlock and in the absence of any cross-examination to that statement, the finding of the learned Magistrate that there is no evidence to prove that respondent No. 2 is the son of applicant is absolutely perverse. That being the position, the finding of the Revisional Court that respondent No. 2 is the son of applicant and is entitled to maintenance of Rs. 400/- per month cannot be faulted. I am unable to accept the statement of learned counsel appearing for applicant that this Court, relying upon the consent deed should draw inference that in absence of any mention about the pregnancy of respondent No. 1, adverse inference must be drawn against respondent No. 1. The applicant had full opportunity to cross-examine respondent No. 1 and he has not availed of the opportunity to bring on record the relevant evidence, which should have been brought on record. In this view of the matter, I find that grant of maintenance of Rs. 400/- to the respondent No. 2 by the Revisional Court cannot be faulted.
8. In the result, therefore, criminal revision application No. 88/2000 is partly allowed. The judgment and order dated 29-2-2000 passed by IInd Additional Sessions Judge, Achalpur, granting maintenance to respondent No. 1 is quashed and set aside. The judgment and order dated 29-2-2000 insofar as it grants amount of maintenance of Rs. 400/- per month to respondent No. 2 is concerned, is maintained. Criminal Revision Application is disposed of in the aforesaid terms.
Application partly allowed.
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