RAGHUNATH Vs. SUMAN

JUDGEMENT

(1.) By this application filed under section 482 of the Code of Criminal Procedure the applicant seeks to challenge the legality and validity of the order of the Judicial Magistrate, First Class Betul dated 18-2-1985, as approved by the order of Additional Sessions Judge, Betul in Criminal Revision No. 13 of 85 decided on 27-6-1986. The effect of there orders is that the applicant is required to pay maintenance not only for his minor daughter Ku. Archna but also for the respondent his wife now living separately from him.

(2.) That the parties are legally married husband and wife is not in dispute. It is also not in dispute that Archna is the minor daughter of the applicant. The applicant also admits that the non applicant resides separately from him. It appears that the non-applicant had filed an. application for judicial separation in the Court of Dist. Judge, Detul where it was registered as Civil Case No. 14-A of 1983. In the said application judicial separation was prayed for on the ground of cruelty. After the evidence in the said case was recorded, the parties entered into a compromise on the basis of which a consent decree for judicial separation was passed on 29-6-1983. It appears that the applicant did not pay any maintenance even after the decree and hence a decree on application under section 125. Cri. Penal Code was filed claiming a sum of Rs. 400/- per month. This application was objected to by the applicant who claimed that the non-applicant was living separately by mutual consent. Learned trial Judge did not find the consent decree as sufficient to hold that the non-applicant was living separately because of mutual consent and awarded maintenance. The said order was challenged before the learned Additional Sessions Judge in Criminal Revision which has been dismissed with the only modification that the maintenance would be payable from the date of the order of the trial Court. It is this order which is impugned in this application.

(3.) The only submission of the learned counsel for the applicant is that the impugned order is contrary to sub-section (4) of section 125 of the Code of Cri. Procedure and therefore deserves to be set-aside. The aforesaid section reads as under: 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. Under the circumstances only question for consideration is whether the non-applicant is living separately by mutual consent? In order to bring a case within this provision it will have to be established that the parties were not only living separately but had voluntarily agreed to live separately. Living separate by mutual consent can not be equated with living separate because of consent decree. It cannot be denied that if the non-applicant is refusing to live with the applicant on the specific ground such a cruelty it cannot be said that the parties are living separately by mutual consent. In the instant case the non-applicant had filed an application for judicial separation on specific complaint against the applicant. The fact that the applicant consented to a decree for judicial separation would only indicate that he agreed with the charges levelled against them. Consenting to the charge levelled by the non-applicant cannot in law be accepted as consenting to live separately. The test in such cases is to find out if the agreement between the parties was for purposes of living separately or was forced by circumstances. In Ajitsingh Hakamsingh v. Labh kaur, the Gujrat High Court took the view that living separately because of force of circumstances does not amount to living separately by mutual consent. In Ram Chand v. Jiwan Bai2. It was held that whether a particular compromise amounted to live separately by mutual consent or not is a question of fact in each case. In an old case reported in Tekchand v. Kalavantibai3, it was held that living separately under an agreement settled by a Panchayat to whom disputes between the husband and wife were referred is not living separately by mutual consent. It is, therefore, clear that what is relevant for the case is not the factum of living separately but the consent to live separately. A perusal of the consent decree for judicial separation would indicate that there was no consent as such to live separately. The consent, if any, was of the applicant to various allegations made against him and therefore of the decree for judicial separation. Because of this consent of the applicant the non applicant wife got full relief from the Court. This cannot amount to her agreeing to live separately by mutual consent. In this view of the matter this Court has no hesitation in rejecting the submission and upholding the order of grant of maintenance.