KAUSHALYABAI DINKAR MULE Vs. DINKAR MAHADEORAO MULE

JUDGEMENT

(1.) THE applicant had filed proceedings for maintenance under section 125 Cri. P. C. The Judicial Magistrate, First Class, Umrer vide judgment dated 16-10-1995 had come to the conclusion that the applicant had proved that the respondent No. 1 refused and neglected to maintain her; she was subjected to cruelty and therefore she resided separately from the respondent No. 1; that the applicant had proved that she had no source of income and she was unable to maintain herself. It appears that the respondent No. 1 had relied upon the Divorce Deed in which the present applicant had relinquished her claim to maintenance. The case of the applicant in respect of this Divorce Deed was that the same was obtained by force by the respondent No. 1. The Magistrate answered the issue relating to said Divorce Deed being obtained by force, in the negative and in view of the clause in the Divorce Deed by which the applicant had given up her right of maintenance, the Magistrate dismissed the application for maintenance. This order was challenged by the applicant before the Sessions Court, Nagpur and the Sessions Judge, Nagpur concurred with the finding of the Magistrate that the Divorce Deed was not obtained by force. He, therefore, refused to interfere in the matter. The applicant has approached this Court under section 482 Cri. P. C.

(2.) LEARNED Advocate for the applicant urged before me that the respondent No. 1 has failed to establish any custom relating to divorce and as such, the Divorce Deed is illegal. Besides this, it is urged that the Divorce Deed was obtained by force and the same is not registered. Learned Advocate for the applicant relying upon a judgment of the Kerala High Court in (Sadasivan Pillai v. Vijayalakshmi), 1987 Cri. L. J. 765, urged that relinquishment of claim of maintenance in the Divorce Deed is against the public policy and such an agreement cannot be enforced in view of section 23 of the Indian Contract Act.

(3.) LEARNED Advocate for respondent No. 1 drew my attention to section 29 (2) of the Hindu Marriage Act, 1955 which reads that nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. When learned Advocate for respondent No. 1 was asked as to what evidence is on record to establish custom, learned Advocate for the respondent No. 1 only referred to findings on points 4 and 5 recorded by the Magistrate and the findings of the Sessions Court in paragraph 4 of its judgment. There is no whisper in either of the two judgments of the courts below in respect of evidence relating to custom. Learned Advocate for respondent No. 1 relied on the two judgments of this Court in (Shrawan Sakharam Ubhale v. Durga Shrawan Ubhale and others), 1988 (3) Bom. C. R. 343 : 1990 Mh. L. J. 418 and (Suresh Channappa Shete v. Lata Suresh Shete and another), 2001 (5) Bom. C. R. 227 : 2000 (1) Mh. L. J. 307. In Suresh Channappa Shete v. Lata Suresh Shete and another (supra), the customary divorce as reflected in the Divorce Deed, had been proved. The other ruling relied upon by the learned Advocate for respondent No. 1, viz. Shrawan Sakharam Ubhale v. Durga Shrawan Ubhale and others (supra) does not deal with the customary divorce though it deals with the question as to whether wife is entitled to maintenance when she chooses to live separately by mutual consent and voluntarily surrenders her right of maintenance. It is observed in the said judgment that term "wife" used in section 125 (1) (a) includes divorcee who is not remarried, under Explanation (b) to sub-section (1) of section 125 Cri. P. C. and it was held that contracting out of the right under section 125 Criminal Procedure Code is not prohibited. In this judgment, reliance was placed on the judgment of the Apex Court in (Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal), A. I. R. 1978 S. C. 1807 wherein it was observed that right of divorced wife to maintenance continues even after divorce unless parties make adjustments and come to terms regarding the quantum of right to maintenance. Therefore, it was held in Shrawan Sakharam Ubhale v. Durga Shrawan Ubhale and others (supra) that legal right of maintenance can be given up and contracting out of right under section 125 Cri. P. C. is not prohibited.