POPAT KASHINATH BODKE Vs. KAMALABAI POPAT BODKE

JUDGEMENT

(1.) HEARD both the Advocates at length.

(2.) SHRI Kankaria submitted that on 28-7-1989 both the petitioner and his wife in pursuance of settlement executed a deed, which has been titled as "pharkatnama". Paragraph No. 3 of the said deed unequivocally declared that after the said deed they were not to have relations as husband and wife as they were divorcing each other by customary system. Shri Kankaria further submitted that by the said paragraph No. 3 wife Kamalabai Popat Bodke relinquished her right in context with maintenance and the property. Shri Naikhavare submitted that Kamalabai is entitled to get maintenance in view of section 125 of Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience) and she is entitled to file fresh application whenever she needs alimony. He submitted that the said document cannot be treated to be a legal document of divorce. He justified the order, which has been put to challenge by the petitioner by this writ petition. Sub-section (4) of section 125 of Code provides that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent. "

(3.) THERE may be a debate in context with the said document and its value as a document of divorce. There may be a debate whether it may be accepted as a relinquishment deed in respect of her right over alimony and property on account of it being not registered as required by provisions of section 17 of Indian Registration Act, but it can be used for collateral purpose and it would be unequivocally heralding that after the said deed both petitioner and said Kamalabai were separating from each other by mutual consent. When that was so, the learned Magistrate should have kept in mind the provisions of section 125 (4) of the Code and should not have passed an order directing the petitioner to give her alimony because, it is not disputed fact that after said deed executed, they are residing separately by mutual consent.