1 crwp-523-02 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 523 OF 2002 Shankar Dattatray Ingawale & Anr. ..Petitioners Vs. Sou. Rajashree Shankar Ingawale ..Respondent Mr. Amit Borkar a/w Mr. Harshad Shingarpurkar for the Petitioners Mr. Sandip Jinsiwale for the Respondent No.1 Mrs. A.A.Mane for State CORAM : SMT. ROSHAN DALVI, J. DATED : 28TH JULY, 2011 P.C. : 1. The Petitioners have challenged the order of the Learned IVth Adhoc Additional Sessions Judge, Kolhapur, dated 6-2-2002 allowing the Revision Application and directing the Petitioners to pay maintenance of Rs.1000/- to the Respondent wife. The order of the Learned Xth Judicial Magistrate First Class, Kolhapur, dated 20-12-2000, which rejecting the application of the Respondent wife herein was accordingly set aside. 2. Upon the admission of this Petition Rule came to be issued. The Respondent wife was appearing through her Advocate. Upon failure of giving instructions from the Respondent, her Advocate returned the papers. He notified the Respondent of this date of hearing through a letter dated 21-7-2011 and informed her the date of hearing of the petition. The letter has been sent by speed post. A telegram has also been sent. The Respondent has been notified of this date of hearing. The Respondent’s Advocate applies for being 2 crwp-523-02 discharged for want of instructions. Since he has informed his client, he is discharged. 3. It is the Petitioner’s case that the parties were married on 16-4-1984. The Petitioner served in the military. There were disputes between the parties upon his return in October 1994. It is his case that whilst he was away he used to maintain the Respondent by depositing the amounts in his bank account which were withdrawn by the Respondent. The Respondent-wife desired to live separately from his parents. He had obtained a premises on rent for her. During his absence, the Respondent wife started living with another man. She was missing from her matrimonial house. The Petitioner’s father lodged missing report with the police station. There is some evidence with regard to the Respondent being missing. 4. It is the Petitioner’s case that upon return from the Army the parties have entered into an agreement. Initially it was claimed to be divorce by mutual consent. Customary divorce of that nature was not proved. However, he relied upon the same document in this proceedings to show the admission of the wife that she did not desire to live with him. Yet the Trial Judge has concluded that he has failed and neglected to maintain his wife. He claims that the mutual settlement shows that she was living in adultery. He has also relied upon the missing complaint filed by his father and certain proceedings from the relevant police station. 5. The Learned Sessions Judge in the impugned order came to the conclusion that this evidence is insufficient to prove the adultery. Consequently, he granted the order of maintenance to be paid by the Petitioner to the Respondent. 6. Mr. Borkar, Advocate for the Petitioner, however contends that upon 3 crwp-523-02 this evidence the case of the Petitioner under Section 125(4) of Cr.P.C. is made out. The said Section exempts the grant of maintenance not only in case where the Respondent is living in adultery, but also when she refused to live with her husband or was living separately by mutual consent. The written agreement between the parties shows that parties are living separately by mutual consent. Consequently the case of the Petitioner falls within the latter portion of Section 125(4) of the Cr.P.C. Hence the order of the IVth Ad.Hoc Additional Sessions Judge dated 6-2-2002 is required to be interfered with and is required to be set aside. Similarly the order of the Learned Xth Judicial Magistrate First Class, Kolhapur in Misc Application No.59 of 2000 dated 20-12-2000, is required to be confirmed. Consequently, Rule is granted in terms of prayer clause (b). 7. Advocate for the Respondent is discharged. Xerox copy of the letter as well as the telegram sent by the Respondent’s Advocate to the Respondent informing her of today’s date of hearing in this Court, are taken on record. (SMT. ROSHAN DALVI, J.)