MARIA ABHISHEGAM Vs. JOYCE EBENEZER

JUDGEMENT

(1.) PETITIONER and respondent 1 were husband arid wife. Their marriage was solemnized on 30-7-1980. A joint petition for consent divorce was filed by the petitioner and respondent 1 in M. C. No. 222 of 1988 on the file of the Family Court at Bangalore and the marriage was dissolved on 31-10-1988. On the date of the presentation of the joint petition, petitioner and respondent 1 had two children viz. , respondent 2-son who born on 28-5-1984 and a daughter by name Anitha who had born on 28-9-1981. In the divorce proceedings, respondent 1 declined to claim any maintenance from the petitioner as she was gainfully employed. In the year 2002, respondents herein filed a petition under Section 127 of the Criminal Procedure Code, 1973 claiming maintenance from the petitioner herein. In the proceedings, an application for interim maintenance was also filed claiming monthly maintenance of Rs. 4,000. 00 per month for respondent 1 and Rs. 1,500. 00 per month to respondent 2-son. On the application filed by the respondent, Trial Court has awarded a sum of Rs. 2,500. 00 to respondent 1 herein. This order is called in question in this writ petition.

(2.) HEARD the learned Counsels for the parties.

(3.) LEARNED Counsel appearing for the petitioner contends that respondent who had declined to claim maintenance from the petitioner herein in a consent divorce petition, at a later stage cannot file an application under Section 127 of the Cr. P. C. since she had voluntarily surrendered her rights to maintenance after her divorce. Therefore, relying upon Section 127 (3) (c) of the Cr. P. C. he requests this Court to set aside the order passed by the Trial Court. In support of his arguments, he has relied upon a judgment of Bombay High Court in shrawan Sakharam Ubhale v Sau. Durga Shrawan Ubhale and Others. Relying upon this decision, he contends that a divorced wife who has voluntarily surrendered to claim maintenance cannot be permitted to file a petition under Section 127 of the Cr. P. C. claiming maintenance. Per contra, Smt. Jayna Kothari, learned Counsel appearing for respondent 1 relying upon the judgment of the Calcutta High Court in joydel Kumar Biswas v Maduri Biswas , contends that even though respondent 1 voluntarily surrendered to claim maintenance while obtaining divorce from the petitioner, still she can maintain a petition under Section 127 of the Cr. P. C. According to her clause (c) of sub-section (3) of Section 127 of the Cr. P. C. has no application for the present case. Therefore, she requests this Court to dismiss this petition.