1. This is a reference by the District Magistrate at Bidar recommending that an order of the Munsiff Magistrate of Ahmedpur, dated 27th March, 1954, ordering the revision-petitioner to pay Rs. 20/- maintenance to his child, and wife. the opposite party be set aside. The respondents had applied under Section 488, Cr. P.C. on the ground that respondent 1 who is the wife was ill-treated and driven out from the house by the revision petitioner after he married a second wife and that he is refusing to maintain her and petitioner No. 2 his child by her.
The revision petitioner denied these allegations and stated that he is prepared to support the petitioners if they come and live with him. The parties had previously arrived at an agreement on 10th of Meher, 1358 P. whereby the revision petitioner, the husband, undertook to give certain amount of grains yearly to the respondent and also Rs. 50/- and some wearing apparels.
The learned District Magistrate is of opinion that this agreement which has been admitted amounts to living separately by consent, which disentitles the wife and child from claiming maintenance. I am unable to agree with this view, because there is nothing to show in this agreement that the wife has consented to live separately. All that has been agreed upon is, that the husband is willing to pay a certain amount specified in the agreement. This cannot amount to living separately by mutual consent, as contemplated under Sub-section 4 of Section 488.
In my opinion, merely because the husband has undertaken to pay certain amount of maintenance by the agreement, the wife is of debarred from claiming maintenance under Section 488 provided she succeeds in proving neglect and refusal to maintain, and that the husband has failed to comply with the agreement. In this case, the trial Court has come to the conclusion on the evidence that was produced before it, that neglect and refusal to maintain and also breach of the agreement is proved. It was, therefore, justified in ordering maintenance.
I am supported in this view by Saraswathl Debi v. Narayan Das 1932 Cal 698 AIR V 19 (A), in which it was held that nothing short of a decree entitling the wife to maintain is sufficient to take away the jurisdiction of the Magistrate under Section 488 for maintenance. Similarly, it was decided in Pal Singh v. Mt. Nihal Kaur 1932 Lah 349 AIR V 19 (B), that if the agreement does not amount to a mutual consent to live separately, but is only for payment of a certain amount of maintenance the jurisdiction of the Magistrate to order maintenance under Section 488, Cr, P.C. is not ousted.
2. In the result, this reference is rejected and the revision petition is dismissed.