IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD WEDNESDAY, THE TWENTIETH (20TH) DAY OF JULY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.R.C.No.2030 of 2011 Between: Smt. Balamani @ Balamma … Petitioner And: M.Mogulaiah … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.R.C.No.2030 OF 2010 JUDGMENT: This criminal revision case is directed against the order dated 06.05.2010 in M.C.No.15 of 2009, on the file of the Family Court, Hyderabad, wherein the said application filed by the petitioner herein under Section 125 Cr.P.C., seeking maintenance of Rs.9,000/- per month, was dismissed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Perused the record. 3. According to the petitioner, she was married to the respondent in March, 1979 and at the time of marriage, dowry of Rs.30,000/- was given, besides other household articles and sometime after marriage, the respondent started harassing the petitioner. She further alleges that when she was working in fields in 1989, she was bitten by a snake and ever since the respondent intended to get rid of the petitioner and necked the petitioner out of the house without any valid reason and did not provide her any maintenance. She further alleges that the respondent is an agriculturist having 14 acres of land worth Rs.50 lakhs and a house of 400 sq.yards and another plot of 200 sq.yards and is also doing seasonal business in toddy, earning Rs.25,000/- per month from all the sources. 4. The respondent filed a counter contending that the marriage was performed on 09.07.1977, but not 1979 and the petitioner used to stay in her parents’ house always and was never caring for the respondent and that in August, 1989 a panchayat was held before the elders and they advised to put an end to the marriage. He further pleads that in pursuance of the arrangement, the respondent paid Rs.31,000/- to the petitioner towards permanent alimony and also gave one tola of gold and ever since the petitioner removed her mangala suthra and started living separately. 5. During enquiry before the Family Court, the petitioner was examined as P.W.1 and Exs.A-1 to A-9 were marked on her side. The respondent was examined as R.W.1 and Exs.B-1 to B-5 were marked. The trial Court, by the impugned order, dismissed the claim for maintenance on the ground that the petitioner has withdrawn from the society of the respondent without any reasonable cause. Aggrieved by the same, the petitioner filed the present criminal revision case. 6. It is not disputed that the petitioner is the wife of the respondent, their marriage having taken place in 1979. According to the petitioner, about 10 years later, she was sent out of the house after she suffered a snake bite. The respondent, on the other hand, alleges that the petitioner all alone is residing in her parental house only accusing the respondent that he was not fit for conjugal life and that in spite of the efforts made by the respondent, the petitioner did not come back and ultimately in August, 1989 a panchayat was held before the elders who advised the parties to put an end to the marriage and accordingly, the respondent paid Rs.31,000/- to the petitioner by way of permanent alimony and both of them executed a document dated 26.08.1989 attested by more than 20 elders. The said document is marked as Ex.B-1. P.W.1 categorically admitted that a panchayat was held in 1989 but she denied that she received Rs.31,000/- and one tola of gold. She, however, admitted the presence of the persons noted in Ex.B-1 at the time of panchayat as elders. P.W.1 also admitted in cross-examination that she used to stay in her parents’ house but alleges that unable to bear the harassment she used to go to her parents’ house. She further admitted that the respondent has married again and she never objected for the same. She also admitted that her brother gifted Ac.1-30 gts of land. Ex.B-4 pahanies for the year 2008-2009 also shows the same. The conduct of the petitioner in keeping quiet for more than 20 years after the panchayat that took place in 1989 without making any claim for maintenance and not raising any objection for the second marriage of the respondent, coupled with her admissions in the cross- examination to the effect that a panchayat did take place in 1989 in the presence of the persons who have signed Ex.B-1, probablise the contention of the respondent that there has been a customary divorce and the petitioner walked out of the marital home by receiving Rs.31,000/- towards permanent alimony. There is absolutely no evidence on record to support the petitioners’ contention that she was necked out of the house in June, 1989. There is also no evidence to show that the petitioner was subjected to any harassment. The allegation of the petitioner that she was harassed and sent out of the house subsequent to her suffering a snake bite, is rather vague and also remains unsubstantiated. It is highly improbable that, having lived together for 20 years after marriage, the petitioner would have been thrown out of the house all of a sudden just because she suffered a snake bite. 7. Before seeking maintenance, the petitioner has to establish that she has just and reasonable cause to live separately from the respondent. The petitioner has miserably failed to show any justification for her living separately from the respondent. On the other hand, as rightly observed by the trial Court, Ex.B-1 coupled with the admissions of P.W.1 would show that petitioner has been residing separately pursuant to the customary divorce by mutual consent before the elders and after receiving Rs.31,000/- towards permanent alimony. As otherwise, there is absolutely no reason as to why petitioner kept quiet for more than 20 years and filed the maintenance case in 2009. 8. The learned counsel for the petitioner would submit that the alleged customary divorce, even if true, is not valid and binding and the petitioner continues to be the legally wedded wife of the respondent. Even then, the petitioner has to establish that she had just and reasonable cause for living separately from the respondent. There is absolutely nothing on record to show that any efforts were made from her side to join the respondent. Admittedly, she has not initiated any proceedings for restitution of conjugal rights. The only panchayat conducted was in August, 1989 wherein according to the respondent, it was agreed to put an end to the matrimonial relationship between the petitioner and the respondent and that it was acted upon. The admissions of P.W.1 in the cross-examination coupled with Ex.B-1 also established the factum of separation in pursuance of the panchayat. It is obvious that because of the arrangement made in pursuance of the panchayat only, the petitioner has not made any sort of claim against the respondent for a long period of 20 years. 9. The learned counsel for the petitioner would rely upon a decision of the Bombay High Court (Nagpur Bench) in GULABRAO NAGORAO INGOLE v. DWARKABAI GULABRAO INGOLE[1], wherein it was held that when the husband has admittedly re-married and living with the second wife, it was not necessary for the wife to prove that husband had neglected or refused to maintain her and the re-marriage of husband itself would entitle the wife to live separately. It is to be seen that it is not the case of the petitioner that she has been living separately because of the re-marriage of the husband. According to her, she was sent out of the house because she suffered a snake bite in 1989. The said plea, however, remained un-established and, on the other hand, the evidence on record shows that the petitioner has been staying mostly in her parents’ house and in pursuance of the panchayat in August, 1989, the parties agreed to live separately and all the claims of the petitioner have been settled and the said arrangement had, in fact, been acted upon and the petitioner and respondent have been living separately by mutual consent. It was much later that the respondent has married a second wife. The decision cited is, therefore, not applicable to the facts of the present case. 10. The learned counsel for the respondent relied upon a decision in POPAT KASHINATH BODKE V. KAMALBAI POPAT BODKE & ORS.[2] Wherein the High of Bombay held as follows:- “If by an agreement parties divorced each other by customary system & intention could be gathered that they were residing separately by consent, then in view of Section 125(4) of Criminal Procedure Code, wife would not be having a right to claim alimony from husband if that agreement has been acted upon & appropriate provision for maintenance has been made.” 11. The learned counsel for the petitioner relied upon a decision in MADDALA NAGARATHNAM v. MADDALA RANGA RAO AND OTHER[3], wherein this Court held that the wife who was paid Rs.1,400/- towards full settlement of her maintenance claim thirty years back cannot be denied maintenance though she has been living separately. In the above case, it was found that in pursuance of the customary divorce between the parties, the wife was paid a paltry amount of Rs.1,400/- in full settlement of her maintenance claims and it was found that she was unable to maintain herself. In the present case, the petitioner had received Rs.31,000/- in full settlement of her claims under Ex.B-1 and she is also having Ac.1-30 gts of land and earning income by doing domestic work. It cannot, therefore, be said that the petitioner is unable to maintain herself. 12. The learned counsel for the petitioner states that there is no customary divorce between the petitioner and the respondent. In that connection, he relied on a decision in SUBRAMANI AND OTHERS V. M.CHANDRALEKHA[4] wherein the Apex Court held that prevalence of customary right to divorce in a community must be specifically pleaded and established by the person propounding such custom. In the present case, even assuming that there has been no divorce between the petitioner and the respondent in the mode accepted by law, still the petitioner would not be entitled for maintenance in the absence of any just and reasonable cause for living separately from the respondent. On the other hand, the evidence on record shows that they have been residing separately by mutual consent. Admittedly, the petitioner is having Ac.1-30 gts of land and she is also earning by doing domestic labour, as can be seen from ration card Ex.A-9. It is, therefore, not a case where she is unable to maintain herself. Section 125 (4) Cr.P.C states that no wife shall be entitled to receive maintenance among other things, if without any sufficient reason, she refuses to live with the husband or if they are living separately by mutual consent. 13. Under those circumstances, the impugned order, dismissing the claim of the petitioner for maintenance, does not call for any interference in exercise of revisional jurisdiction, as the same does not suffer from any illegality or material irregularity. 14. In the result, the criminal revision case is dismissed. ______________________ G.V.SEETHAPATHY, J 20th July, 2011 Lrkm. [1] 2010 CRI. L. J 1471 [2] 2003(2) CRIMES 300 [3] 2008(2) ALD (CRL.) 683 (AP) [4] (2005) 9 SCC 407