TEJASWINI Vs. CHANDRAKANT KISANRAO SHIRSAT

JUDGEMENT

(1.) This petition takes an exception to the common judgment and order dated 10-6-2002 passed by the learned Additional Sessions judge in Criminal Revision No. 53-A/2000 filed by the petitioner-wife claiming enhancement in maintenance allowance under section 125 of the Code of criminal Procedure and Criminal Revision No. 60/2000 filed by the respondent- husband for quashing entire order of maintenance, whereby the learned additional Sessions Judge dismissed the criminal revision filed by the wife and allowed the criminal revision filed by the husband and set aside the order passed by the learned Judicial Magistrate, First Class on 30-11-1999 in Misc. Criminal case No. 507/98 directing the husband to pay maintenance @ Rs. 500/- per month to wife. However, so far as the order regarding grant of maintenance to petitioner No. 2 Rahul, who is the son of petitioner No. 1 is concerned, it has been confirmed by the learned Additional Sessions Judge.

(2.) Brief facts are required to be stated as under : the petitioners had filed Misc. Criminal Case No. 507/98 under section 125, criminal Procedure Code for grant of maintenance on the allegations that the respondent-husband having sufficient means, refused and neglected to maintain them who were unable to maintain themselves. The learned Magistrate on consideration of the evidence adduced by the parties, had granted maintenance @ rs, 500/- per month each to the wife and the son from the date of the application by his order dated 30-11-1999. Being aggrieved by this order, the petitioner-wife had filed criminal revision No. 53-A/2000 for enhancement of the maintenance allowance and the respondent-husband had also filed criminal revision No. 60/2000 for quashing the entire order of maintenance on the ground that the wife had executed the customary divorce deed as well as the consent deed (Exh. 23) on 25-11-1995 and relinquished her right to claim past and future maintenance before the learned Additional Sessions Judge. The learned Additional Sessions judge by his common order dated 10-6-2002 dismissed the revision filed by the wife for enhancement of maintenance allowance and allowed the criminal revision filed by the husband and quashed and set aside the order granting maintenance to the petitioner No. 1-wife. This order is under challenge in this petition.

(3.) Mr. C. A. Joshi, the learned counsel for the petitioners-wife and son contended that the customary deed of divorce under which the wife is said to have given up her claim for maintenance cannot be enforceable in law as the custom has not acquired any force of law nor it is backed by any custom and in absence of any proof of the custom or that the deed of divorce is legally valid, the said alleged customary divorce deed has no evidentiary value in the eyes of law and, therefore, the relinquishment which is said to have been made by the wife for the claim of past and future maintenance is invalid. He contended that though in the consent deed (Exh. 23) it has been mentioned that the wife has given up her claim for past and future maintenance, nothing has been mentioned as to how much amount in lump sum was paid to her in the said consent deed. He contended that the husband claims to have paid the amount of Rs, 40,000/- in lump sum towards the past and future maintenance of the wife, but this fact has not been duly established. He contended that the husband had filed the petition claiming divorce under section 13 of the Hindu Marriage Act, 1955 which was registered as Hindu Marriage Petition No. 44/91 on the ground that the wife was suffering from mental disorder and this petition was dismissed on 21-6-1993.