GEORGE Vs. SARAMMA PODIYAMMA

JUDGEMENT

(1.) THIS reference is by the sessions judge of Quilon recommending the cancellation of the order of maintenance passed by the Sub divisional Magistrate, Adoor in M. C. 23 of 1966 on the file of his court. The petitioner in the M. C. is one Saramma Podiyamma alias Rahelama who stated that she was married by the counter-petitioner according to the customary rites obtaining in their community, on 7--10-1131. They lived together till Makaram 1134. Thereafter the counter-petitioner left the station in connection with his employment and refused to maintain her. In spite of mediation by respectable neighbours he continued to neglect her. He gets a monthly pay of Rs. 250/-from the Neyveli Project where he is employed. Besides, he gets Rs. 500/-annually, from his properties. The counter petitioner in his written statement admitting the petitioner's status as wife contended that she had abandoned him of her own free will. She also filed a suit in the Sub Court, Mavelikara against him and his parents, for the return of dowry, the value of ornaments misappropriated and also for her maintenance. The suit was compromised by agreement of parties and on payment of a lump sum Of Rs. 1500. To evidence the payment of this amount a registered receipt was taken. In the registered document which was marked Ex. D2, she had expressed her desire to terminate the alliance, and that suit was decreed in terms of the compromise. By the execution of Ext D2, the relationship of husband and wife had ended. He is, therefore, not bound to maintain her. The learned Sub Divisional Magistrate has held that in spite of ext. D2 the marital relationship subsists and he has accordingly allowed the petition and directed the counter-petitioner to pay maintenance to the petitioner at the rate of Rs. 15/-per mensem.

(2.) THE learned Sessions Judge's Quilon has pointed out in his order of reference that the parties are now living apart by mutual consent evidenced by Ex-D2 and therefore she is not entitled to claim maintenance and the order should be quashed. THE matter was heard by me at some length and I am satisfied that the reference has to be accepted and the order of the Sub divisional Magistrate vacated S. 488 (4) Cr. P. C. applies to the facts of the present case and from the conduct of the parties it must be inferred that they are living separate by mutual consent or arrangement. S. 488 (4) reads: " (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. "