BAI LAXMIBEN Vs. BHARATBHAI

JUDGEMENT

(1.) Substitute illusion for reality : Such is the claim made by the petitioner-husband, who has succeeded in getting divorce and discharging his liability for future maintenance of the divorcee by paying lump sum amount of Rs. 901/- in all. Can law countenance illusory payment of lump sum amount as future maintenance and discharge the husband from his liability to provide necessary wherewithal for the maintenance of the divorcee?

(2.) The petition arises out of maintenance proceedings instituted by the petitioner-wife against opponent 1 husband. The petitioner filed Criminal Misc. Application No. 35 of 1983 in the Court of JMFC, Kalol. She claimed that earlier she had filed an application for maintenance being Criminal Misc. Application No. 50 of 1979. In that application there was a compromise between the parties and the application was dropped. The marital tie was dissolved by executing a deed of divorce dt. Dec. 21, 1981 which is produced at Exh. 14. As per the deed of divorce, the opponent-husband had paid Rs. 901/- towards maintenance. Thereafter, the petitioner filed an application for maintenance and submitted that, though she was divorced, she was entitled to claim maintenance at the rate of Rs. 150/- per month. She had no means of earning. She was staying with her parents as parasite. Of course, she was helping in the agriculture work of her parents, but she had no independent source of earning. She had examined herself and her father in support of her claim. The opponent-husband examined himself and relied upon the deed of divorce produced by both the sides. The opponent-husband stated that he had already paid an amount of Rs. 901/- as and by way of maintenance for past as well as future. Therefore, there was no liability on him to pay any amount of maintenance.

(3.) The trial Court, on appreciation of evidence, came to the conclusion that the petitioner-wife was employed with her parents and was doing some agriculture labour work. Thus the parents of the petitioner-wife were getting some labour work done free of charge and in consideration thereof, they were maintaining her. Therefore, according to the learned Magistrate, she had sufficient means of livelihood and therefore, she was not entitled to claim any maintenance. The learned Magistrate also held that there was no evidence on record to show as to what was the extent of income of the opponent-husband and he also held that in view of the divorce deed the petitioner-wife had voluntarily surrendered her right of maintenance and therefore, she was not entitled to claim any maintenance. This judgment and order was delivered by the trial Court on Feb. 23, 1984, against which the petitioner-wife preferred Criminal Revision Application No. 51 of 1984 in the Court of Sessions Judge at Panchamahals at Godhra. The learned Sessions Judge disposed of the revision application only on one ground. In his view, as per the provisions of S. 127(3)(c) of the Cr. P.C., the application for maintenance, filed by the petitioner was not maintainable at all. Hence, without going into other aspects of the case, the learned Sessions Judge rejected the revision application as per his judgment and order dt. Aug. 16, 1984. Being aggrieved by the aforesaid judgments and orders passed by the lower courts, the petitioner-wife has preferred this special criminal application.