BHASKAR TANHAJI DHOKRAT Vs. PARWATABAI BHASKAR DHOKRAT

JUDGEMENT

(1.) THE petitioner, who is the husband, questions the legality and propriety of the order made by learned Judicial Magistrate, First Class, dismissing the application for cancellation of the order for maintenance passed in favour of the petitioner No. 1, (Respondent No. 1 ).

(2.) THE material facts which require mention are these : n Criminal Misc. Application No. 92 of 1977 order of maintenance was passed in favour of the respondent No. 1 wife under section 125 of the Code of Criminal Procedure by learned Judicial Magistrate, First Class. The respondent No. 1 then took out recovery proceedings. In that proceedings the petitioner by his separate application numbered as Criminal Misc. Application No. 443 of 1986 pleaded that the respondent No. 1 obtained a customary divorce from him on receiving a sum of Rs. 5,000/- and as such she voluntarily surrendered her right to maintenance. He relied on a document called Kararnama written on a stamp paper of Rs. 5/- and requested the learned Magistrate to cancel the order of maintenance passed in Criminal Misc. Application No. 92 of 1977. That application was strongly opposed to by the respondent No. 1 by filing her say at Exh. 10. She denied the allegations of divorce and surrender of her right to maintenance in lieu of receipt of Rs. 5,000/- from the petitioner. She submitted that she received the amount of Rs. 5,000/- towards arrears of maintenance. The learned Magistrate dismissed the application but the petitioner challenged the order of dismissal in Criminal Writ Petition No. 8 of 1989, in this Court. By order dated 24-10-1989 this Court remanded the matter to the Magistrate with certain directions. It was firstly directed that the Magistrate should ascertain if the Deed of Divorce relied on by the petitioner was proved on the basis of a recognised custom between the parties. After the remand the evidence was adduced and on consideration of that evidence the learned Magistrate held that the petitioner failed to establish that there was recognised custom in their community whereby customary divorce can be obtained. The application was, therefore, again dismissed against which this criminal revision application is filed.

(3.) MR. Garud, learned Counsel appearing for the petitioner, submits that the learned trial Magistrate has not properly appreciated the evidence adduced by the petitioner in proof of custom prevailing in the community to which the parties belong. It is also submitted that if the Kararnama is read as a whole it is evident that the respondent No. 1 obtained divorce from the petitioner and she voluntarily surrendered her right to maintenance after her divorce on receiving the sum of Rs. 5,000/- in full and final settlement of claim towards maintenance. It is, therefore submitted that the order rejecting the petitioners application for cancellation of the order for maintenance is not correct and requires to be interferred in this revision. On the other hand, Mr. Gore, learned Counsel for the respondent No. 1, urged that in the first place the evidence adduced by the petitioner to prove the custom as prevailing in the community to which the parties belong is insufficient to prove the fact that there is such a custom in the community for divorce by mutual consent. Secondly it is submitted that assuming that there is such a custom but the custom allowing divorce against wish of other party and that too in consideration of payment of money is invalid as it opposes public policy.