Case Note & Summary
The applicant, Sau. Ashabai Himmatrao Junghare, filed a criminal revision application challenging the order of the Additional Sessions Judge, Achalpur, dated 27.5.2004, which set aside the maintenance order passed by the Judicial Magistrate First Class, Chandur Bazar, in Criminal Case No.30/2001. The applicant claimed to be the legally wedded wife of the respondent, Himmatrao Kisanrao Junghare, married in 1964. They had a child who died in 1973. The applicant alleged that the respondent neglected to maintain her, subjected her to cruelty and desertion, and married another woman. She filed an application under Section 125 CrPC seeking maintenance of Rs.1500/- per month, stating she was unable to maintain herself while the respondent, a retired Police Constable, received pension and had agricultural income. The respondent admitted the marriage and second marriage but claimed a customary divorce and mutual separation since 8.3.1973, asserting that the applicant was a Nurse and could maintain herself. The Magistrate granted maintenance, but the Sessions Judge reversed it. The High Court found that the respondent failed to prove the customary divorce or the applicant's ability to maintain herself. The court noted that the respondent did not produce any evidence of the custom or the divorce, and the applicant's testimony that she was not working was unchallenged. The court held that the Sessions Judge erred in reversing the Magistrate's order without sufficient evidence. Consequently, the High Court allowed the revision, set aside the Sessions Judge's order, and restored the Magistrate's maintenance order.
Headnote
A) Family Law - Maintenance under Section 125 CrPC - Customary Divorce - Burden of Proof - The husband claimed customary divorce and mutual separation since 1973, but failed to produce any documentary or oral evidence to prove the custom or the divorce. The court held that mere assertion of customary divorce without proof is insufficient to deny maintenance to the wife. (Paras 4-6) B) Family Law - Maintenance under Section 125 CrPC - Wife's Ability to Maintain - The husband contended that the wife was working as a Nurse and could maintain herself. However, the court found no evidence on record to show that the wife was actually employed or earning. The wife's testimony that she was unable to maintain herself was accepted. (Paras 5-6) C) Family Law - Maintenance under Section 125 CrPC - Living Separately by Mutual Consent - The fact that the wife lived separately by mutual consent since 1973 does not automatically disentitle her to maintenance. The court must consider her inability to maintain herself and the husband's means. (Paras 4-6)
Issue of Consideration
Whether the wife is entitled to maintenance under Section 125 CrPC despite the husband's claim of customary divorce and mutual separation since 1973.
Final Decision
The High Court allowed the criminal revision application, set aside the order of the Additional Sessions Judge, Achalpur dated 27.5.2004, and restored the order of maintenance passed by the Judicial Magistrate First Class, Chandur Bazar in Criminal Case No.30/2001 dated 10.10.2003.
Law Points
- Customary divorce must be proved by strict evidence
- Wife living separately by mutual consent does not bar maintenance under Section 125 CrPC if she is unable to maintain herself
- Burden of proof on husband to establish wife's adultery or valid divorce
