SHOBHANABEN H PATEL Vs. HARSHADBHAI RATILAL PATEL

JUDGEMENT

(1.) Petitioner herein is the estranged wife of respondent No. 1 who filed Criminal Miscellaneous Application No. 77 of 1989 before the learned Metropolitan Magistrate, Ahmedabad and claimed a monthly maintenance of Rs. 500.00 for herself and Rs. 400.00 for each of the minor children from respondent No. 1 under Section 125 of the Criminal Procedure Code, 1973. The learned Magistrate, under his judgment and order dated 19/10/1991, awarded monthly maintenance of Rs. 350.00 to each of the minor children. However, rejected the petitioner's application for maintenance. Feeling aggrieved, the petitioner preferred Criminal Revision Application No. 329 of 1991 before the learned Additional Sessions Judge. Ahmedabad who, under his judgment and order dated 10/03/1992, rejected the same. Feeling aggrieved, the petitioner has preferred this petition under Article 227 of the Constitution of India.

(2.) While considering the petitioner's claim for maintenance, the learned Magistrate has relied upon the document Exh. 10 which is purported to be a Deed of Divorce taken in presence of the Social Workers of Jyoti Sangh. In the said Deed of Divorce, it has been mentioned that the petitioner shall have custody of the children and that she shall not claim any maintenance from the respondent No. 1. The petitioner and the respondent No. 1, however, failed to establish the customary divorce and the learned Magistrate has, therefore, held that the divorce has not taken place. However, the learned Magistrate considered the said document to be an agreement to live separately and came to the conclusion that the petitioner and the respondent No. 1 were living separately with mutual consent and, therefore, the petitioner, in view of the provisions contained Section 125(4) of the Code, was not entitled to maintenance. The learned Magistrate has also relied upon the documents produced by Jyoti Sangh containing proceedings that took place before the Social Workers of Jyoti Sangh. Considering the said documents [Exh. 7], the learned Magistrate held that the petitioner was living in adultery and, therefore also, she was not entitled to maintenance. Finding of fact recorded by the learned Magistrate has been upheld by the revisional Court and both the Courts below have, therefore, rejected the claim of the petitioner for her maintenance.

(3.) Learned advocate Mr. Chitnis appearing for the petitioner has produced before this Court certified copies of the documents Exh. 7 and 10. He has contended that the findings recorded by the Courts below are perverse and require to be reversed. He has further contended that in no circumstances, the deed of divorce could have been treated as an agreement to live separate by mutual consent. Learned advocate Mr. Shelat has opposed this petition and has challenged the maintainability of this petition under Article 227 of the Constitution of India. He has submitted that Section 397 (3) of the Code prohibits second revision application by the aggrieved party and the petition filed under Article 227 of the Constitution to circumvent the bar under Section 397(3) of the Code is not maintainable. He has contended that the petitioner and respondent No. 1 had agreed to live separately under the purported deed of divorce [Exh. 10] and, therefore, in view of the provisions contained under Section 125(4) of the Code, the petitioner was not entitled to maintenance under Section 125 of the Code. He has further contended that there is concurrent finding of fact recorded by the Courts below that the petitioner and respondent No. 1 were living separately by mutual consent and, therefore, said finding should not be interfered with. In the alternative, he has submitted that in any event, if the Court holds that the petitioner is entitled to maintenance, the matter should be remanded to the trial Court for determination of maintenance keeping in view the income of respondent No. 1 husband or considering the income of respondent No. 1 which is determined by the trial Court, and considering respondent No. 1's liability to pay maintenance to the children, the petitioner ought not to be awarded monthly maintenance more than Rs. 200.00.