SHRAWAN SAKHARAM UBHALE Vs. DURGA SAKHARAM UBHALE

JUDGEMENT

(1.) APPLICANT Shravan Ubhale married non-applicant No. 1 Sau. Durga on 2nd May, 1982. Very soon misunderstanding developed between the two and relations got strained. There was exchange of correspondence All attempts at reconciliation failed. On 13-6-1983 there was a divorce between the two by mutual consent. Two documents - Divorce deed (Ex. 15) and Consent Deed (Ex. 10) were executed by both Thereafter both started residing separately. Sau. Durga was pregnant at the time of divorce. She delivered a male child Kailash (non-applicant No. 2) after a month or two. When Kailash attained the age of about 1 years, Sau. Durga filed an application for maintenance under Section 125 of the Code of Criminal procedure for herself as well as Kailash Shravan resisted the application inter alia on the ground that Sau. Durga had specifically relinquished her right to claim past and feature maintenance.

(2.) THE learned Judicial Magistrate repelling the defence, granted maintenance to Durga at the rate of Rs. 100/- and to Kailash at the rate of Rs. 50/- per month. The said order was maintained by the learned Sessions Judge. Inherent powers of this Court are invoked under Section 482 of the Code of Criminal Procedure on the ground that the proceedings under Section 125, Cr. P. C. were an abuse of process of Court and ends of justice demand that they should be quashed. Having perused Ex. 15 and Ex. 10 and other undisputed positions on record, I find considerable substance in the present criminal application filed by Shravan Ubhale as far as his liability to pay maintenance allowance to Durga is concerned. Taking divorce by mutual consent in this manner is a long standing custom prevailing in certain communities in this region. All terms have to be examined as a whole and as a package deal and no term can be examined in isolation. Indeed many times one term is a consideration for the other. In this light the following agreed terms will have to be examined. (i) The divorce was being executed because of the disagreement between the parties. (ii) Both were free to remarry; (iii) Durga was carrying in her womb a child of about 8 months. His custody was to be given to Shravan as soon as feeding period was over; (iv) Shravan had to recover nothing from Sau. Durga; (v) Durga would not claim any maintenance - either for the past or for the future.

(3.) THE learned Magistrate has not even referred to the consent deed (Ex. 10) and held that even a divorced wife is entitled to maintenance until her remarriage. The learned Sessions Judge referring to the consent-deed (Ex. 10) observed thus : "it does not reveal that she has given up her right for future maintenance. No doubt that she has written that she will not demand any maintenance, but legal right cannot be given up in this manner. "