SNEHALATA BISWAL Vs. SAROJ KUMAR BISWAL

JUDGEMENT

(1.) THE petitioner's application Under Section 125, Criminal Procedure Code (in short 'the Code') claiming maintenance at the rate of Rs. 500/ - per month from the opposite party having been dismissed by the Sub - divisional Judicial Magistrate, Bargarh, she filed this application Under Section 401 of the Code challenging the said order.

(2.) AFTER stating the facts, findings of Court below and contentions of the counsel His Lordship held:

(3.) THE main question that arises for consideration is whether the petitioner can be said to have been deprived of her right to maintenance under Sub -section (4) of Section 125 of the Code on the ground that she and the opposite party are living separately by mutual consent. It is pertinent to rote that this provision disqualifies the deserted wife from claiming maintenance from her husband for her separate living and ii in the nature of an exception to the right vested in her Under Section 125(1) o of the Code. As such the provision under Sub -section (4) has to be strictly construed. In order to establish a case of the spouses living separately by mutual consent it has to be established that this is done under contract voluntarily and freely made between the parties expressing their mutual consent for living separately. This cannot be inferred merely because a divorced wife is compelled to live separately from her previous husband, sheerly by force of circumstances, Surprisingly enough the document Ext. A, purportedly containing consent of the wife for divorce, is totally silent about her living separately from her husband. All the recitals in the document are regarding her consent to free the opposite party from the wedlock and to give her consent for him to marry again. She has made no statement in the document regarding her consent for separate residence. Even the opposite party examined as O P. W. 2 does not make a statement that both of them agreed to live separately after the document Ext. A was executed by the petitioner.