Court:CALCUTTA HIGH COURT
Bench: JUSTICE J.N. Hore
AMARENDRA NATH BAGUI Vs. GOURI RANI BAGUI AND ANOTHER On 29 June 1990
When a wife lives separately by mutual consent can she still claim maintenance under Section 125 of the Cr.P.C. ? (No).
The present Revisional Application at the instance of the husband is directed against the judgment and order dated 13-7-89 under Section 125, Criminal Procedure Code passed by the learned Judicial Magistrate, 6th Court, Sealdah directing the petitioner husband to pay maintenance to the O.P. wife Smt. Gouri Rani Bagui at the rate of Rs. 350/- per month from the date of filing of the petition.
2. O.P. No. 1 Smt. Gouri Rani Bagui filed an application under Section 125, Criminal Procedure Code for maintenance inter alia upon the allegations that she was married with the petitioner in May, 1966 according to Hindu Rites and Custom and that the petitioner for the reasons best known to him filed a matrimonial suit being No. 268 of 1967 under Section 12(1) of the Hindu Marriage Act, 1955 for a declaration that the marriage was nullity on the ground that opposite party No. 1 has no female organ except a small passage for passing urine and was incapable of sexual intercourse. That suit was withdrawn after the doctor who examined the O.P. No. 1 found that she had a normal female organ and was capable of sexual intercourse. After withdrawal of the aforesaid suit the present petitioner agreed to pay maintenance to the O.P. No. 1 at the rate of Rs. 300/- per month from February, 1969. The petitioner paid maintenance at the said rate from February, 1969 till December, 1978 and there-after at the rate of Rs. 350/- per month from January, 1978 till December, 1985. From January, 1986 the petitioner stopped paying maintenance despite repeated demands and thus refused and neglected to maintain the O.P. No. 1, it was alleged that the O.P. No. 1 had no independent income and the petitioner’s monthly income was about Rs. 3,500/-.
3. The petitioner resisted the claim mainly on the ground that the O.P. No. 1 and the petitioner had been voluntarily living separately by mutual consent and O.P. No. 1 was not, therefore, entitled to get any maintenance. It was alleged that the petitioner withdrew the matrimonial suit on the request of the O.P. No. 1 and her other relations and through the negotiations of common welwishers of both the parties. It was mutually agreed and settled between the parties that the parties would live separately by mutual consent and the O.P. No. 1 would not claim any maintenance whatsoever from the petitioner and she also consented to the second marriage of the petitioner. The petitioner never paid any maintenance at the rate of Rs. 300/- or Rs. 350/- as alleged.
4. The learned Judicial Magistrate held that the claim of the wife/ petitioner under Section 125, Criminal Procedure Code for maintenance could not be defeated on the strength of a constant decree in a divorce suit. He accordingly passed an order for maintenance in favour of the present O.P. No. 1. Being aggrieved the petitioner has moved this court in revision and obtained the present Rule.
5. Mr. Nandy, learned Advocate appearing for the petitioner has contended that the petitioner and the O.P. No. 1 are living separately by mutual consent, and so under Sub-section (4) of Section 125, Criminal Procedure Code, O.P. No. 1 is not entitled to maintenance. This contention has considerable force and merits acceptance. The learned Magistrate was obviously wrong in thinking that there was a consent decree passed in the matrimonial suit between the parties to the effect that O.P. No. 1 would not claim maintenance. The suit being Matrimonial Suit No. 20 of 1967 was withdrawn, and there is no question of passing any decree in that suit.
6. It is the case of the petitioner that after the withdrawal of the said suit the parties mutually agreed to live separately, and since then they have been living separately by mutual consent. The fact that the parties have been living separately on mytual consent is clearly admitted by the O.P. No. 1 in the last line of her cross-examination where she has stated that they were living separately on mutual consent after the withdrawal of the suit. The only point on which the parties appear to differ is that according to the petitioner there was no agreement as to the alleged payment of maintenance at the rate of Rs. 300/- whereas the claim of O.P. No. 1 is that at the time of agreement between the parties to live separately, the petitioner agreed to pay maintenance at the rate of Rs. 300/- per month and as a matter of fact it was paid at that rate till December 1978 and at the rate of Rs. 350/- from January, 1978 till December, 1986. It is immaterial for the purpose of Sub-section (4) of Section 125, Criminal Procedure Code whether there was agreement to pay maintenance between the parties. In Sub-section (4) of Section 125, three contingencies have been provided where wife is not entitled to maintenance :
(i) When she is living in adultery;
(ii) When she refused to live with husband without any sufficient cause;
(iii) When she is living separately by mutual consent.
7. We are concerned with the last contingency in this case. Admittedly the parties are living separately by mutual consent. The O.P. No. 1 is not, therefore, entitled to maintenance under Section, 125, Criminal Procedure Code. She may be entitled to maintenance under the Hindu Marriage Act or in an action for enforcement of the alleged agreement for maintenance but Sub-section (4) of Section 125 which governs the whole of Section 125 including Sub-section (1) is a clear bar to her claim for maintenance. In Nathuram v. Smt. Atar Kurwar, AIR 1969 All. 191, it has been held that where the separate living proceeds from the common desire of the husband and the wife live separately whatever the reason for the desire may be, it is certainly by mutual consent. Where, therefore, since the passing of the consent decree for judicial separation, the parties have been living separately by mutual consent the wife is not entitled to receive any maintenance under Section 488 Criminal Procedure Code (present Section 125) she may pursue such remedies as may be available under Hindu Marriage Act. In this case separate living proceeded from the common desire of the husband and the wife to live separately and was in face an outcome of a free agreement between the parties. The parties are living separately on mutual consent and O.P. No. 1 is not entitled to maintenance under Section 125, Criminal Procedure Code.
8. The impugned order is, therefore, illegal and liable to be set aside. The Revisional Application is, therefore, allowed and the impugned order is set aside and the Rule is made absolute.
Revision application allowed.
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