PANDIAMMAL Vs. SIRUMANIDOSS

JUDGEMENT

(1.) THE petitioner in M.C.No. 9 of 1990 on the file of Chief Judicial Magistrate, Madurai, has filed this petition under Sec. 482, Criminal Procedure Code praying to set aside the order passed by the Chief Judicial Magistrate, Madurai in M.C.No. 9 of 1990 and the order passed in Crl.R.C.No. 92 of 1990, on the file of I Additional Sessions Judge, Madurai in which the learned Additional Sessions Judge had confirmed the order passed in M.C.No. 9 of 1990.

(2.) SHORT facts are: The petitioner had filed M.C.No. 9 of 1990 against the respondent under Sec.125, Criminal Prcoedure Code, praying for maintenance at the rate of Rs. 500 per month, on the allegations that she is the lawfully wedded wife of the respondent and that she had been driven out from the house by the respondent and he is not willing to take her back and that she is not able to maintain herself. That was opposed by the respondent on various grounds, inter alia contending that to put an end to the matrimonial relationship, an agreement of divorce by them was affected on 31.5.1988 and that the petitioner is not at all entitled to any maintenance on the ground of adulterous life and living separately by mutual consent, waiver of right of maintenance entered in divorce agreement, after getting lumpsum maintenance. After elaborate enquiry, the Chief Judicial Magistrate, had found that they were living separately by mutual consent by virtue of the document dated 31.5.1988 and hence the petitioner is not entitled to maintenance in view of Sec. 125(4), Criminal Procedure Code. Aggrieved by the same, the petitioner filed Crl.R.C.No. 92 of 1990 before the learned I Additional Sessions Judge, Madurai. After hearing the parties, the learned Sessions Judge had concurred with the findings of the trial Court and had held that they were living separately by mutual consent and hence in view of Sec. 125(4), Criminal Procedure Code, the peti-tioner is not entitled to maintenance. Aggrieved by the same, the petitioner has come forward with this petition under Sec.482, Criminal Procedure Code.

(3.) I have given careful consideration to the submission made by Mr.M.V. Venkataseshan. The learned trial Magistrate had held in para. 12 of his order that the petitioner is not entitled to maintenance in view of Sec. 125(4), Criminal Procedure Code on the finding that they were living separately by mutual consent by virtue of the document dated 31.5.1988. Likewise, the learned Sessions judge had held in para.10 of his judgment that the petitioner is not entitled to maintenance by virtue of Sec. 125(4), Criminal Procedure Code and the finding in this regard by the learned Magistrate was correct and he concurs with that finding, acting upon the deed dated 1.5.1988 which was married as Ex.R-1. Both the courts below have failed to take note of the positive allegations made in para.4 of the petition. The respondent refused to take her back to the conjugal home when she tried to go back to the home. When such a wish as has been expressed by her to her husband, any mutual consent to live separately would come to an end. In Narasimha v. Rangan Thayammal, (1946) 2 M.L.J. 479: A.I.R. 1947 Mad. 304: 60 L.W. 328: 1946 M.W.N. 768: 1946 M.W.N.(Crl.) 146: 229 I.C. 163: 48 Crl.L.J. 284, Justice Yahya Ali had held that it cannot be said that the married status between a husband and wife comes to an end by mere separate living and mutual consent within Sec. 488(4) involves the consent of both the parties and if any one of them decides to put a stop to separate living Sec.488(4) ceases to operate and then the wife gets her right to claim maintenance, subject to such defence as the husband may have under Sec.488. It would be relevant to mention that the above ruling was rendered under Sec. 488 of the old Criminal Procedure Code with great respect, I am in total agreement with the view expressed by Justice Yahya Ali. Living separately by mutual consent, which was relied upon by the courts below for negativing the claim of the petitioner is not correct, in view of what has been stated in para.4 of the petition. While so, the findings of the courts below are to be set aside and the matter has to be remitted back to the trial court for fresh disposal according to law and in the light of the observations made in this judgment. I would like to make it clear that living separately by mutual consent expressed to Ex.R-1 had come to an end, the moment the petitioner had expressed her wish to live with her husband in the conjugal home which has been made explicit in para.4 of the petition.