Shankar Baliram Thakre vs Mankaranabai

L. Manoharan, J.—This writ petition under Article 227 of Constitution of India is directed against the orders dated 30.12.1992 and 23.8.1994.

Brief facts are that the Petitioner is the husband of Respondent. On the allegation that the Petitioner has refused/neglected to maintain the Respondent, she instituted Misc. Cr. Case No. 165/90 u/s 125, Code of Criminal Procedure before J.M.F.C. Khamgaon. The learned Magistrate by his order dated 30.12.1992 allowed the application and ordered Petitioner to pay maintenance at the rate of Rs. 500/- p.m. and further directed that the said order shall take effect for the date of the petition i.e. from 27.12.1990. Aggrieved by the said order, the Petitioner preferred Criminal Revision No. 13/93 before the Sessions Judge, Khamgaon which was heard along with Cr. Revision No. 42/93, which was against the distress warrant in the execution proceedings. The learned Additional Sessions Judge dismissed both the revisions. This writ petition under Article 227 of the Constitution, as indicated above is directed against the aforesaid two orders of J.M.F.C. and Additional Sessions Judge in relation to the order directing payment of maintenance.

The learned Counsel Shri Deshpande on behalf of the Petitioner urges that the impugned orders cannot stand scrutiny in view of Section 125(4) Code of Criminal Procedure and the Respondent herself has admitted that she is residing separate by mutual consent. The learned Counsel relied on para 6 of judgment of learned Additional Sessions Judge to contend that the Respondent was living separate on account of mutual consent between herself and her husband. In view of the same, according to the learned Counsel, orders of both the Courts below are vitiated and are liable to be quashed by exercising jurisdiction under Article 227 of Constitution of India.

The learned Counsel for Respondent Shri Shrivastav relying on the decision in Surendra Singh v. State of Bihar 1991 Cri.LJ 3040 (F.B.) has contended that where the Petitioner has already invoked the revisional jurisdiction of the Sessions Judge u/s 397, Code of Criminal Procedure and his second revision to the High Court is barred u/s 397(3), it would indeed require very exceptional circumstances to warrant interference under Article 227. On the assumption that the petition is also u/s 482, the learned Counsel for the Respondent relied on the decision in Dharampal and others Vs. Smt. Ramshri and others, and contended that in view of Section 397(3), Code of Criminal Procedure the jurisdiction of the Court u/s 482, Code of Criminal Procedure cannot be invoked. Such a question does not arise in this case, because as indicated earlier, this petition is only under Article 227 of the Constitution. Therefore, the question whether this petition can also be entertained u/s 482 does not arise. As per the decision in Surendra Sigh''s case 1991 Cri.LJ 3040 (F.B.) cited supra, power of superintendence of this Court under Article 227 can be exercised only in very exceptional circumstances and the said power is not intended to circumvent a statutory bar.

In this case, the main thrust of argument of teamed counsel for Petitioner is that both the orders are sheerly illegal because there is patent violation of Section 125(4), Code of Criminal Procedure. Therefore, according to him, this Court will be right in invoking the powers of superintendence under Article 227 of Constitution. Only if Section 125(4) is applicable to the instant case and there was violation of the same, can there be justification for invoking the jurisdiction under Article 227 of the Constitution. Therefore, the question for consideration is whether there is violation of Section 125(4), Code of Criminal Procedure. As noted above, the case of the Petitioner is that since Respondent is living separate on mutual consent, she has disqualified herself to claim maintenance u/s 125, Code of Criminal Procedure and order of maintenance in the said circumstance is in violation of Section 125 and thus the Courts below have committed illegality. Whenever ''consent'' is prerequisite under law, the consent shall be free consent. The consent should not be vitiated by any of the vitiating circumstances; the consent shall be voluntary. A party who is guilty of creating an environment, whereby the other party could not but to abide by his wish, cannot claim that the consent, was mutual consent. In this case, the Petitioner is keeping a mistress; he had one mistress and after her death he is having another mistress. It is under that circumstances that his legally married wife had to live separate. Interpretation of law necessarily must be with due regard to ordinary human conduct. Ordinarily a wife will not be able to live under the same roof, where the husband is keeping his mistress. As such the husband created a circumstance, which compelled the wife to live separate and that cannot be termed her living separate with mutual consent. That cannot be a reason to deny her maintenance. The learned Counsel for the Respondent brought to my notice a decision of Delhi High Court reported in the case of Amarnath v. Prannath AIR 1968 Del 217. There the learned Judge has emphasized that desire to live separate should emanate from both parties and that none of them should be forced to separate living and ultimately submit to it only as a result of circumstances brought about by one of the parties. To the same effect is the decision in the case of Laisram v. Sakhi Devi AIR 1965 Man 49. In short, the consent or desire to live separate should be voluntary and it should never be the result of the creating of an atmosphere by one amongst them, by which they could no longer live under the same roof. Here since the consent of the non-applicant cannot be said to be voluntary her living separate cannot be said to be on mutual consent within the meaning of Section 125(4), Code of Criminal Procedure.

As regards the quantum of maintenance, the same essentially is a question of fact, which will not fall under Article 227 of the Constitution. Apart from the same both the Courts below have demonstrated in their judgments that though under the partition, 10.00 acres of land was allotted to the Respondent, from 7/12 extract, it is clear that the Petitioner himself continues to be in possession of the said land. Thus she is practically leading a life of a destitute and allowing her a maintenance of Rs. 500/- per month with due regard to the resources of the Petitioner cannot be said to be excessive or unjust.

In the result, the petition deserves to be dismissed and is accordingly dismissed.