Suresh Chandra Srivastava vs Smt. Arti Devi

P.K. Jain, J.—Heard Sri Chandra Jit Yadav, brief holder for Sri S. C. Srivastava, learned counsel for the revisionist and Sri V. K. Goel, learned counsel for the opposite party. The judgment and order of the Family Court in a proceedings u/s 125, Code of Criminal Procedure is assailed on the ground that the opposite party was living separately by mutual consent and that there was divorce with the consent of the parties during the proceedings in the Panchayat. Hence in view of provision of Section 125(4), Code of Criminal Procedure, the wife was not entitled for maintenance allowance and the court below has committed error in granting the maintenance allowance. Learned counsel for the opposite party contends that the court below has given cogent reason for rejecting the plea of living separately on mutual consent as also of divorce by agreement between the parties.

It is alleged in the memo of revision itself and was also alleged before the court below that the wife (opposite party) was of unsound mind at the time of marriage and lived with the revisionist for three days only and was sent back to her parents and since then she has been living there with her free consent. The court below held that the consent was meaningless if the wife was of unsound mind and there could be no question of free and mutual consent. It was also alleged that a Panchayat was held and document was executed by mutual consent of the parties. The marriage was dissolved before the Panchayat. The court below held that since the wife was of unsound mind, there could be no dissolution of marriage by consent and secondly that no custom having been proved, the marriage between Hindu husband and wife cannot be dissolved by agreement before Panchayat.

There is no illegality in these findings of the trial court. The revision is devoid of merit and is finally disposed of at the admission stage. The stay order dated 2.11.1993 is discharged.