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SCR.A/22/2108 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2221 of 2008
======================================
POPATLAL
RAMCHANDRABHAI KIRI ( KHATRI )
Versus
GUNVANTIBEN
LALLUDAS BHENDA
======================================
Appearance
:
MR YN RAVANI for
Applicant.
None for
Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 17/11/2008
ORAL
ORDER
The
petitioner has invoked provisions of Section 482 of the Criminal
Procedure Code and Articles 226 and 227 of the Constitution to
challenge order dated 15-9-2008 of learned Additional Sessions Judge
and Presiding Officer, Fast Track Court, Palanpur, whereby his
revision for rejecting an application under Section 125 pending
before learned JMFC, Palanpur, was rejected, mainly on the ground
that the main application was as yet pending and yet to be decided by
the trial Court. Learned counsel, Mr.Ravani appearing for the
petitioner reiterated his argument that the original applicant ?
wife was divorced by the petitioner after payment of a lumpsum amount
towards her maintenance, and almost 20 years thereafter, she had
filed the application under Section 125 of the Criminal Procedure
Code for her maintenance. It was vehemently argued, without support
of any judgment in his favour, that by virtue of the provisions of
Sub-section (4) of Section 125, if the husband and wife were living
separately by mutual consent, the husband may not be obliged to
maintain his wife, which term includes the woman, who has been
divorced. As held by this Court in Ajitsing Hakamsing v.
Labhkaur wife of Ajitsing Hakamsing and Another
(XII GLR 509),
if the wife is obliged to live separately and has agreed to take
maintenance on account of compelling circumstances, it could not be
said that the wife is living separately by mutual consent. It is
also held that the Court is entitled to enquire into the anterior
circumstances that led to such an agreement. It may be added that
while deciding the issue of maintenance, the fact of divorce may not
be decisive, in view of the express provision including a divorced
woman in the definition of ?Swife??, who may otherwise become
entitled to maintenance from her husband. Payment of a lumpsum
amount at one stage may also not be decisive since such payment at a
given point of time may not defeat the statutory right which
continues throughout the life of the ?Swife??, which again includes
a divorced wife. All these issues are required to be agitated and
examined by the trial Court in light of the evidence that may be led
by the parties. Therefore, it was premature for the petitioner to
seek dismissal of the application of the original applicant and there
is no reason to interfere with the impugned order at this stage in
exercise of extraordinary powers of this Court. Therefore, the
petition is summarily rejected.
(D.H.Waghela,
J.)
*malek
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