1 Appln.: 243/2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.243 OF 2003 Mrs. Malutai Ananda Patil .... Petitioner Vs. Shri Ananda Keshav Patil & The State of Maharashtra .... Respondent Mr. Sagar A. Mane i/by N.V. Bandiwadekar, Advocate for petitioner. Mr. S.A. Shaikh, APP for respondent. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 9th December, 2011 P.C. : 1. This writ petition is directed against the judgment and order dtd. 31st October 2002 passed by the Sessions court, Kolhapur allowing Criminal Revision Application No.98 of 2000 filed by respondent no.1 to challenge the order of maintenance passed against him under Section 125 Code of Criminal Procedure. 2 Appln.: 243/2003 2. The marriage of the petitioner and the respondent had taken place on 20th May 1990. In the year 1995, the petitioner filed proceedings under Section 125 Code of Criminal Procedure alleging that soon after the marriage, respondent no. 1 and his family members started demanding Rs.2,000/-, a gold chain and gold earrings from her parents and started ill- treating her over the demand. Finally four months after the marriage, she was driven out of the house. Since then she has been residing with her parents. According to the petitioner, the respondent is financially well established and sought maintenance in the sum of Rs.1500/- per month. 3. The respondent filed his written statement disputing allegations of ill-treatment and desertion of the petitioner. He contended in the written statement that his marriage to the petitioner was his second marriage. His first wife has been died leaving behind 7-8 months old child. Prior to the marriage, the petitioner had agreed to look after the child. However, few days after the marriage, she started quarreling with respondent no.1 over the child. Then she left the 3 Appln.: 243/2003 matrimonial house and went to her father’s house. Respondent no.1 had been then approached Shahuwadi Police Station, where the petitioner and her parents were called. It was then agreed between two in the presence of the witnesses, that they would enter into customary divorce. The petitioner agreed to accept Rs.4000/- towards permanent alimony. Accordingly deed of divorce (Exhibit 63) was executed on 13th February 1991, after respondent no.1 paid a sum of Rs.4,000/- to the petitioner on 27th January 1999. Since the divorce, the parties have been staying separately. In view of the divorce, the petitioner was not entitled to maintenance. 4. The parties examined themselves in support of their respective claims. The trial Court by its judgment and order dtd. 6th March 2000 rejected the claim of the petitioner that she had been subjected to ill-treatment over illegal demand by the respondent and his family. The trial Court also noted that there was divorce deed dtd. 13th February 1991 executed by the parties and that the petitioner had accepted Rs.4,000/- from respondent no.1 in lieu of her right of maintenance. It 4 Appln.: 243/2003 however, held that since the respondent no.1 had failed to prove the custom of divorce in the community, to which the petitioner and respondent no.1 belonged the claim of respondent no.1 of divorce between the parties cannot be accepted. It then gave a finding that respondent no.1 had failed to prove that the petitioner had withdrawn from his company and had been refusing him to cohabit with him, or that both were residing separately by mutual consent, to finally hold that the petitioner is entitled for maintenance. It awarded maintenance @ Rs.400/- per month to the petitioner. 5. Being aggrieved by the judgment and order of the trial Court, respondent no.1 approached the District Court, Kolhapur invoking its revisionary jurisdiction. The District Court by its order dtd. 31st October 2002 allowed the revision application and set aside the order of the trial Court awarding maintenance to the petitioner and dismissed the application of the petitioner. According to revisional Court, the trial Court had committed an error in recording a finding that customary divorce was not proved. It had that the document at Exhibit 5 Appln.: 243/2003 63, which had been proved by the witness of the respondent, ought to have been treated as a genuine document. The revisional court further noted the evidence of the witness of respondent, who deposed about the customary divorce in the community of Marathas, which evidence was not controverted. Consequently the fact of the customary divorce stood established. 6. The learned counsel for the petitioner submits that the revisional Court was in error in accepting bare word of a single witness to hold that the custom of divorce in the community to which the parties belonged, was established. 7. In my considered opinion, the question whether the parties can be said to have divorced each other by the divorce deed at Exhibit 63 is hardly of any consequence. The trial court did not find any substance in the claim of the petitioner that she was being ill-treated over the demands and further that the petitioner had accepted a sum of Rs.4,000/- from respondent no.1 to relinquish her right to the maintenance. Therefore there was no question of grant of maintenance to the 6 Appln.: 243/2003 petition. The revisional Court ought to have allowed the revision application on the ground that the arrangement for maintenance for the petitioner had already been made by the respondent by paying lumpsum amount of Rs.4,000/-. The order passed by the revisional court is required to be maintained, not for the reasons stated in the order, but for the reason stated above. Hence, the Rule is discharged. The petition is dismissed. (SMT. R.P. SondurBaldota, J)