Decided on July 09,1984

BHERU LAL Respondents

Referred Judgements :-



S.S.BYAS, J. - (1.)THIS revision raises interesting question of law as to whether a consent decree of divorce dissolving the nuptial tie of a Hindu couple precludes the wife of claim maintenance from her ex -husband under Sub -section(4) of Section 125 of the Code of Criminal Procedure.
(2.)IT would be proper to briefly notice the relevant facts giving rise to this revision -petition. The marriage between the parties was solemnized n accordance with the traditional Hindu rites and ceremonies somewhere seven year before in December, 1975. According to wife a male child was born in her from this wed -lock nearly four years after the marriage. The child was named as Gopal. The relations between the spoue however, did not remain sweet for long and the husband started ill -treating the wife He started ill -treating her and ultimately turned her out along with the child from his -roof The wife thereupon initiated proceedings for maintenanc against the husband but ultimately withdrew it on being assured by him then future he would treat her nicely with kindness. The husband, however did not fulfil his solemn promise as he wanted to have another wife The wife thereafter initiated a proceeding for restitution of conjugal rights Lains the husband in the Court of District Judge Udaipur Again, some person intervened and the dispute was resolved between the parties The husband once more made a promise not to ill -treat her and to have with her in the city of Udaipur. He also submitted sureties in this connection were the District Judge and the proceeding, therefore, came to an end. The' husbandagain failed to keep his promise. He took her to village Dabok and unlawfully confined her there in a bid to compel her to commit suicide, wife's father on being apprised to her confinement moved the learned Munsif Judicial Magistrate, Nathdwara to get her released. The husband took her and the minor child Gopal to village Bagol where again she was physically torturted. A criminal case was instituted against the husband in that connection which was pending investigating with police When the wife ultimately came out of the unlawful confinement, she moved an application on October 23, 1975 under Section 125 of the Code of Criminal Procedure in the Court of learned Munsif and Judicial Magistrate, Nathdwara Gainst the husband for providing maintenance to her and the minor child, Gopal. it was alleged by her that the husband having sufficient means, had that refused to maintain her and the minor child. It was alleged that husband was earning nearly Rs 600/ - per month. She, therefore, claimed sum of Rs. 200/ -per month to be allowed to her as maintenance to Maintain herself and the minor child. The application was resisted by the husband. Though the marriage was admitted by him, all other averments were categorically denied. According to him Gopal was not his legitimate or illegitimate child and was not born to the wife from his lion. It was alleged by the husband that the wife was leading an adulterous life having illicit relation with number of persons. The allegations of cruelty and beating etc Anted The alleged that the wife wanted to live with her paramour (not named in the reply) and as such was not interested in living with him under his conopy The institution of various civil and criminal proceedings was admitted but it was submitted that all ended in his favour. The wife's claim of maintenance was, thus, sought to be defeated mainly on the ground of her leading an adulterous life and further on the ground that the minor Gopal was not his child legitimate or illegitimate. Both the parties adduced evidence in support of their respective allegations and assertions. It appears that the husband initiated a proceeding under the Hindu Marriage Act 1955 for dissolution of marriage by a decree of devorce. The divorce was ultimately granted on consent of the parties. It all happened during the pendency of the proceeding under Section 125. Cr. PC On the conclusion of enquiry the learned Magistrate held (1) the dissolusion of marriage between the parties by a consent decree of divorce showed that the husband and the wife were living separately by mutual consent and (2) the minor Gopal was not the child legitimate or illegitimate of the husband. As such, neither the wife nor the minor child were entitled for maintenance by the husband. The petition was consequently dismissed. Aggrieved against the said decision of the learned Magistrate, the wife has filed this n vision -petition on her behalf and on behalf of the minor Gopal.
I have heard the learned ccunsel for the parties and gone through the case file carefully.

(3.)IN assailing the impugned order it was vehemently contended by the learned Counsel shri Gupta appearing for the wife and the minor that the whole approach of the Court below was erroneous and unsustainable in law It was argued that it is not there on record as to how a consent decree of divorce dissolving the matrimonial knot between the parties was passed and on what grounds The divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 is available only on a joint application of the couple. No such joint petition was filed by the parties before the District Judge It was inter alia argued that even where the marriage between the parties was dissolved by a consent decree of divorce, it did not absolve husband from the liability of providing maintenance do her and the minor child. The decree of divorce obtained by mutual consent should not be to show that the parties were living separately by mutual consent. In support of his contention Mr. Gupta relied upon Bai Tuhira v. Ali Hussain and Ors. : 1979CriLJ151 , Mariyumma v. Mohammed Ibrahim ARI 1978 Kerla. 23 and Bai Hansa Ben v. Patel Kanhayalal and Ors. 1980 Gurja rat Law Reporter 138.

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