RAVINDRA VASANT KARKHANIS Vs. SHOBHA RAVINDRA KARKHANIS

JUDGEMENT

(1.) One Shobha Deshpande was married to Ravindra Karkhanis, a divorcee on 17-3-1980 at Bombay under the Hindu Customary Rites. The marriage was also registered and the couple started living together as husband and wife at Laxman Zulla, Ranade Road, Bombay-400028. A daughter Ruta was born out of the wedlock on 20-11-1980 but as difference arose the couple started living separately from 16th October, 1980. They applied in January 1985 to the Bombay City Civil Court under section 13-B of the Hindu Marriage Act, for passing a decree of divorce dissolving the marriage. As a period of six months is provided for under sub-section (2) of section 13-B for a motion to be made the learned Judge of the City Civil Court had made the petition filed on 2-1-1985 returnable on 19-8-1985. Before that date the petitioner No. 1 took out a Notice of Motion praying that maintenance may be granted for her daughter Ruta and explained that even though she had stated in the petition under section 13-B that the couple had agreed that custody of the child shall be with the wife and that the wife shall not claim any maintenance for the daughter Ruta, such an averment was formal one and inserted at the instance of the common advocate who was acting for both of them. The learned Judge of the City Civil Court made the motion absolute and granted maintenance of Rs. 200/- p.m, with effect from August 1985 giving rise to the present appeal.

(2.) Mr. Gavanekar, the learned Counsel for the husband Ravindra has underscored the fact that the wife who is double-graduate and engaged as a teacher had, out of her own free will, agreed that she shall not claim any maintenance for the daughter Ruta and that the plea of this averment being of a formal nature is a clear after thought. If the wife is now allowed to retract from her stand taken in the consent petition so the argument proceeds nothing would prevent her from even retracting from her stand that she would not claim any maintenance or alimony either past or future embodied in para 9 of the joint petition.

(3.) It is no doubt true that the wife had stated in the combined petition that "she shall not claim any maintenance for the daughter Ruta". It is unnecessary to go into the question whether this was supposed to be a formal term as alleged by the wife or the question of the property of engaging a common advocate for presenting a petition for divorce by mutual consent. What stares at us from this petition is that the husband and wife took away the jurisdiction of the Divorce Court to determine the amount of maintenance of the child Ruta with which it was charged under section 20 of the Hindu Adoptions and Maintenance Act, 1956 which provides that a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is minor. Such a situation arose in (Bennett v. Bennett) (1952)1 K.B. 249, in which before pronouncement of a decree nisi the couple had entered into a deal whereby the husband agreed to make financial provision for his wife and son in consideration of which the wife covenanted not to proceed with the prayers for maintenance and to consent to their being dismissed and not to present any further petition for maintenance. Holding that the deed is unenforceable being against the public policy Denning, Lord Justice after following an earlier view of Lord Chancellor Hailsham in (Hyman v. Hyman) 1929 A.C. observed :