VIRENDRA KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) THIS application under section 482, CrPC of Vjrendra Kumar is directed against an order dated 6-3-1981 of the III Special Judicial Magistrate Budaun, granting Rs. 100/- per month as maintenance to Smt. Kailasho (opposite party no. 2) and confirmed by the order dated 17-8-1981 of the II Additional Sessions Judge, Budaun, in Criminal Revision no. 143 of 1981.

(2.) THE marriage between Virendra Kumar and Smt. Kailasho stands dissolved by a decree dated 12-3-1979 passed by the District Judge, Pilibhit, in petition no. 10 of 1978. Though the parties were contesting this petition, the decree was passed on the basis of their mutual consent contained in a joint application moved by them before the District Judge, Pilibhit, in the said petition on the date of hearing.

(3.) SUB-section (4) of section 125, CrPC lays down the circumstances in which no wife shall be entitled to receive maintenance from her husband. They are (1) if she is living in adultery ; or (2) if, without any sufficient reason, she refuses to live with her husband, or (3) if they are living separately by mutual consent. Smt. Kailasho is not living in adultery. The decree of dissolution also furnishes sufficient reason for her to live separately. The mere fact that the decree of dissolution is passed on a compromise does not mean that after the divorce she is living separately by mutual consent. Her separate living is the necessary consequence of the decree of divorce. The parties to a marriage can live separately by mutual consent only while the marriage is subsisting. Once a marriage is dissolved even by mutual consent under section 13-B, Hindu Marriage Act, separate living of the parties cannot be said to be by '* mutual consent ". In such a case parties to the marriage are living separately not by mutual consent but by the intervention of a divorce decree. In fact " living separately by mutual consent " in sub-section (4) of Section 125 connotes an agreement between the parties which provides for their living separately by mutual consent and further that they are actually living separately in terms of that agreement. Parties living separately after a divorce decree cannot; be said to be living separately in terms of an agreement to that effect even though the basis of the decree is mutual consent. In other words, to bring a case within Section 125 (4), it must be shown that the husband and wife are living apart by a definite contract made between them. If they are living apart; in pursuance of a decree of divorce, it cannot be said that they are living apart by mutual consent. Then sub-section (4) of section 125 does not apply to a divorcee. Such a question was raised in Prakash Chandra Verma v. Smt. Prakashwati, 1983 AWC 433= 1983 ACrR 220 in which, on a reference made to a Division Bench, it was further held that-