NATVARLAL JEKISANDAS Vs. BAI GIRJA AND ANOTHER

JUDGEMENT

(1.) This is a revision application brought by one Natverlal whom I call the "husband" for the sake of convenience, he being aggrieved by the order passed by the learned Additional Sessions Judge, Surat in the criminal revision application No 82 of 1980, which he was pleased to decide in favour of the opponent Bai Girja, who admittedly is the divorced wife of the husband. The marriage had taken place in the year 1942 and in the year 1955 when the woman was carrying, by mutual agreement or consent a deed of divorce had come to be executed by and between the parties on 7-5-55 because customary law of the parties permitted such divorce. The deed of divorce was read by Mr. N R. Oza, the learned advocate appearing for the husband and there is no controversy about the factum of divorce, nor is there any dispute about the text of the said writing of divorce. It appears that the parties mutually felt that it was no longer possible for them to pull on together and they, therefore, decided to resort to the caste custom to put an end to their marital tie, which was as per that deed and custom was put an end to. Some provision was made for the opponent's maintenance, namely (1) she was staying with one Ratilal, the elder brother of the husband, and the deed provided that she could continue to reside with Ratilal as before; (2) one room admeasuring 10'X 10' was set apart for her stay if she wanted to stay away from Ratilal and one floor of that house was earmarked for her to realise the rental income therefrom ; and (3) golden ornaments weighing about 15 tolas were kept apart and she was entitled to retain them till her life-time, but on her death those ornament were to go back to Ratilal. From the year 1955 till 1980, when the application came to be filed by the opponent, no claim was advanced against the husband and it is the husband's say that as Ratilal had filed a suit against this husband to effect partition of the alleged joint family properties, she was put forward as a tool or instrument to exert undue pressure on the husband because the opponent continued to live, according to the husband, with Ratilal as before.

(2.) After getting served with the notice of the court, the husband gave an application at Ex. 6 requesting the court to decide two pure questions of law as preliminary questions. They were (1) the divorce having been effected prior to 1-4-74, the day on which the present Code Criminal Procedure came into operation, the opponent wife divorced prior to that date was not entitled to claim any maintenance; and (2) as per section 125(4) of the Code, she was not entitled to claim any maintenance, because the admitted deed of divorce amply showed that the husband and the opponent were "living separately by mutual consent". The learned Magistrate agreed to hear those points as preliminary points. Relying upon one Supreme Court Judgment, he held that a wife divorced even prior to 1-4-74 was entitled to claim maintenance under section 125 of the Code (Mr. Oza conceded before me that he did not re-agitate this question). The learned Magistrate also held that as the husband and the opponent were living separately by mutual consent as the deed of divorce showed the opponent was disentitled in the matter of claiming maintenance under sec- 125 of the Code. The result was that the learned Magistrate dismissed the application for maintenance.

(3.) Being aggrieved by the said decision of the learned Magistrate, the opponent moved the Sessions Court by invoking its revisional jurisdiction. The learned Addl. Sessions judge there held that the divorce deed appeared to be engineered by the husband and the woman in the circumstances narrated in the divorce deed was almost a helpless victim and therefore, the second preliminary point decided against the opponent was wrongly decided by the learned Magistrate. The appellate Judge dealt with this question in paragraphs 14, 15 and 16 of the judgment impugned in this revision application. He held "in my opinion, the applicant-wife was forced to submit by the circumstances to the divorce deed and she was rather compelled to reside separately".