ORDER
1. This revision if filed by the husband challenging the order of the learned Additional Sessions Judge, Hindupur in M.C. No. 1 of 1987 awarding maintenance at Rs. 200/- per month to his wife from the date of the petitioner, namely 21-9-1986. The learned counsel for the revision petitioner challenged that portion of the order of the learned Additional Sessions Judge awarding maintenance from the date of the petition till the date of disposal of M.C. No. 1/1987.
2. The facts leading to the filing of this revision are briefly as follows :- The petitioner herein and the first respondent were married on 27-5-1984 and they lived together only for two days. According to the first respondent, she was forcibly driven away from the house of her husband; whereas the contention of the husband is that she has voluntarily left the house and was living away from him by an agreement dt. 16-1-1984 which is marked as Ex. D-1 in this case. Both the wife and husband have executed a divorce agreement in the presence of mediators.
M.C. No. 1/1987 was transferred to the Additional Sessions Judge, Hindupur to be tried along with O.P. No. 7/1987 which was filed by the husband for dissolution of marriage herein the husband has alleged unchestity of the wife. The learned Additional Sessions Judge, Hindupur has disposed of O.P. No. 7/1987 as well as the M.C. No. 1/1987 on the same day, namely, 5-10-1990 and awarded maintenance to the wife as mentioned above.
4. The learned counsel for the petitioner argued that in O.P. No. 7/1987 the learned judge having given a specific finding that the wife has wilfully deserted the husband for more than three years prior to the presentation of O.P. No. 7/1987 in pursuance of Ex. A. 1 agreement (which is same as Ex. D-1 in M.C. No. 1/1987) executed with the consent of the wife and husband and having found that there are grounds to dissolve the marriage between the husband and wife, the learned Additional Sessions Judges has committed an error in awarding maintenance from the date of the petition. He argued that such a direction is quite contrary to the provisions of C. (4) of Section 125 Cr.P.C.
5. The only question, therefore, that falls for consideration in this case is whether the petitioner and the first respondent have been living separately by mutual consent ?
6. The learned counsel for the petitioner relying upon the decision of Bombay High Court in Smt. Shantabai Saitwal v. Jindas Baburao Saitwal & Ant., 1985 (2) Crimes 901 argued that when maintenance was granted to the wife on her application and thereafter the husband obtained a decree for divorce on the ground of desertion, the factum of desertion disentitled the wife to maintenance. Considering the decree for divorce on the ground of desertion, as a change in circumstance, the learned judge held that the wife is not entitled to claim maintenance under Section 125 of Code of Criminal Procedure. The contention put forth by the learned counsel in that case, which found favour with the learned Judge, is that the decree for divorce granted on the ground of desertion shows that the wife has abandoned the matrimonial home without sufficient cause and without the consent of the husband and against his wish. But, the Calcutta High Court in Ranjit Kumar v. Swaha Rani, 1979 Crl. LJ 1301 has taken a different view that the ground of desertion in Civil Court’s decree is not a decision within the meaning of Section 127 Clause (2) of Code of Criminal Procedure. Fact of desertion had to be proval independently in proceedings under Section 127(2). The learned Judge held that the decree in the Civil Suit is conclusive proof of the fact that the wife has been divested of her legal status of wife but it is not a conclusive proof of the reasons for which she has been so divested. In that view, the learned Judge held that the fact of desertion should be proved independently in the application for cancellation of maintenance.
The learned counsel for the petitioner also relied upon Teja Singh v. Chhotos, 1981 Crl. LJ 1467 holding that the finding given in an application filed under section 9 of Hindu Marriage Act that the wife had deserted her husband is binding on the Magistrate and that the Magistrate could not come to a contrary finding and grant maintenance. The learned counsel also relied upon the decision of Calcutta High Court in Amarendera Nath Bagui v. Gouri Rani Bagui, 1990 Crl LJ 2415 and argued that when the husband and wife were living separately by mutual consent, Section 125(4) of Cr.P.C. is a clear bar to her claim for maintenance and the wife is not entitled to maintenance under Section 125(4) Cr.P.C. The learned Judge held that in that case the separate living proceeded from the common desire of the husband and the wife to live separately and was in fact an out come of a free agreement between the parties. The learned Judge further found that the parties were living separately on matual consent and, therefore, the wife was not entitled to maintenance under section 125 of Cr.P.C.
7. In this case, it cannot be said that the parties are living separately by mutual consent by virtue if Ex.D. 1. agreement, because the case of the first respondent is that the wife lived with him only for two days and then left the matrimonial home. The various recitials in Ex. D. 1 do not spell out that on and from the date of Ex. D. 1 the wife and husband have been living separately by mutual consent. Ex. D. 1 only shows that because of incompetibility between the wife and husband and as there is no possibility of wife and husband living together, they have agreed in the presence of mediators to take divorce, and therefore, they have executed Ex. D. 1 agreement.
8. The first respondent herein who examined herself as PW 1 deposed that herself and her husband lived happily for three months and thereafter her husband and his father started teasing her and she has narrated in detail the circumstances leading to her leaving the matrimonial house. It is also in the evidence that the wife had launched the criminal prosecution against the husband for the offence of bi-gamy. That case was dismissed as she could not produce evidence. The very fact that the husband filed a petition for dissolution of marriage alleging unchastity of the wife shows that she was subjected to cruelty. Having alleged unchastity to the wife, he filed to substantiate that ground. Even assuming that the finding of the Civil Court is binding, the finding is that the wife has deserted the husband for more than three years prior to the presentation of the petition in pursuance of Ex. A-1 agreement, with her consent. That may be a ground for dissolution of marriage, but does not afford a ground for refusing award of payment of maintenance to the wife from the date of the petition.
As held in Ajitsingh Hakamsing v. Lashkaur, 1971 Crl LJ 888 living separately by mutual consent should be the out-come of the desire of both parties independently reached by each of them and none of them should take recourse to separate living owing to circumstances brought about by one of them. It is further held that the anterior circumstances show that the wife was compelled owing to her husband keeping a mistress, it would be a just ground for her under the second proviso to S. 488(3) Cr.P.C. of 1898 to live separately, and that it could not be said that she was living separately by mutual consent so as to operate as a bar to her claim under section 488(1) of Cr.P.C.
9. I have observed already with reference to the recitals in Ex. D. 1 agreement that, that is only an agreement for divorce, but not an agreement for living separately by mutual consent.
10. A division Bench of Bombay High Court held very recently in Mustafa Shamsuddin Shaikh v. Shamshad Begum Mustafa, 1991 Crl LJ 1932 that in proceedings under S. 125 of the Code of Criminal procedure, it is not necessary for the Court to ascertain as to who was in the wrong and whether the wife was guilty of leaving the matrimonial house without any reason. Their Lordships held that a right to claim maintenance under the Code is not dependent upon who was right and who was wrong in the matrimonial disputes and that the Magistrate is duty bound to award maintenance once it is found that the wife is unable to maintain herself and her husband has means but still neglects or refuses to maintain the wife. It is further held that the Magistrate is not required to examine whether the conduct of the wife in initially leaving the house was just or not, that the conduct of the wife at the time of leaving the house is wholly irrelevant and that the Magistrate must concentrate on the facts and circumstances existing on the date of passing order on application filed under S. 125 of the Code.
11. The finding of the learned Additional Sessions Judge in O.P. No. 7/1987 is that the wife was living away from the husband for more than three years earlier to the presentation of the application in pursuance of Ex. A-1 agreement executed by her and her father. Therefore, it cannot be said that there was any fault on the part of the wife in living separately from her husband. As I mentioned already, the act of living separately is not by mutual consent and as per Ex. D. 1 agreement, the mutual consent is only for taking divorce.
In the absence of any allegation that the wife had means to maintain herself, I hold that the liability of the husband to maintain the wife is not discharged.
12. The learned Additional Sessions Judge, Hindupur has awarded maintenance from the date of the petition filed under S. 125 Cr.P.C. I do not find any ground to alter the same.
13. The Revision is, accordingly, dismissed confirming the order of the learned Additional Sessions Judge, Hindupur in M.C. No. 1/1987.
14. Revision dismissed.