Gangeshwar Prasad, J.
1. This is a reference by the Civil and Sessions Judge of Orai recommending that the order of the Sub-Divisional Magistrate, Jalaun dated 4-1-1965 by which he directed payment of maintenance allowance to a wife in a proceeding under Section 488 Cr. P. C. be set aside and the application for the allowance be rejected.
2. The claimant is Smt. Atar Kunwar and she claimed maintenance from her husband, Nathu Ram, for herself and for her two children. The claim was contested by Nathu Ram who, while admitting that the claimant was his wife, denied that she was entitled to maintenance. After taking the evidence of the parties, the Sub-Divisional Magistrate, Jalaun granted to the claimant an allowance of Rs. 30/- per month from the date of the application. Against this order Nathu Ram filed an application in revision in the Court of Session, and that has led to the reference.
3. Admittedly, Smt. Atar Kunwar was married to Nathu Ram about eight years before the commencement of this proceeding. After a peaceful married life for some time the couple became estranged and eventually started living apart. Smt. Atar Kunwar then filed an application for the grant of an allowance against Nathu Ram under section 488 Cr. P. C. and on 12-11-1960 an order was passed in her favour granting an allowance of Rs. 20/- per month. Later, however, the parties got reconciled to each other and resumed living together; but, again, there was a rupture, and it was followed by an application under Section 488(3) Cr. P. C. by Smt. Atar Kunwar for arrears of the allowance granted to her by the order dated 12-11-1960. The Sub-Divisional Magistrate who dealt with the application held that, in view of the subsequent resumption of married life by the parties, Smt. Atar Kunwar was not entitled to claim any allowance on the basis of the order dated 12-11-1960 and rejected the application on 19-7-1963. He, however, observed that the applicant would be at liberty to apply afresh for the grant of an allowance.
The proceeding giving rise to this reference was then started by Smt. Atar Kunwar on 25-9-1964. It appears that some time in 1964 Nathu Ram instituted a proceeding under Section 10 of the Hindu Marriage Act against Smt. Atar Kunwar praying for a decree for judicial separation. In that proceeding Smt. Atar Kunwar filed an application on 10-11-1964 stating that for the preceding three years she had been living with her father and had not gone to her husband Nathu Ram, and further that she was neither prepared to go to him then nor would she go to him ever afterwards. The prayer in the application was that the decree claimed by the plaintiff be passed. A decree for judicial separation was, accordingly, passed by the Civil Judge of Oral on 13-11-1984. Before the learned Civil and Sessions Judge of Orai who has made this reference, it was contended on behalf of Nathu Ram that a decree for judicial separation bars a claim for an allowance under Section 488, Cr.P.C. and reliance for this contention was placed on Smt. Ravendra Kaur v. Achant Swarup 0044/1966 : AIR1966All133 . The learned Civil and Sessions Judge was of the view that the above decision completely supported the contention, and the reference is based entirely on the acceptance of that contention.
4. A careful reading of the decision would, however, make it clear that it does not lay down the broad proposition on which the reference is based. It will be noticed that before pronouncing upon the effect of the decree for judicial separation which was pleaded in that case as a bar to the claim tor maintenance allowance, Tripathi, J., who decided the above case 0044/1966 : AIR1966All133 , said:
'Judicial separation can be obtained by either party to a marriage inter alia also on the ground that the other party has deserted him or her for a continuous period of not less than two years immediately preceding the presentation of the petition under S, 10 of the Hindu Marriage Act of 1955. The allegation made by the opposite party before the Magistrate was that he had obtained the decree for judicial separation on this ground.'
The learned Judge then proceeded to observe as follows:--
'Sub-section (4) of Section 488, Cr.P.C., provides that no wife shall be entitled to receive an allowance from her husband....if without any sufficient reason she refuses to live with her husband. It is, therefore, clear that in view of the decree passed by the Civil Court granting judicial separation to the opposite party, the applicant cannot be held entitled to receive maintenance allowance from him and under the law it was the duty of the Magistrate to have noticed the decision of the Civil Court as provided under Sub-section (2) of Section 489 of the Code even though there was no specific application under that section before him.'
The conclusion obviously is that the decree for judicial separation passed against the wife in that case was found to be based on the fact that she had refused to live with her husband without any sufficient reason, and it was on that account that she was held to be disentitled to receive an allowance. There is nothing in the decision to suggest that decree for judicial separation in itself and irrespective or the facts on which it is based must in all cases preclude a claim for maintenance by a wife under Section 488, Cr.P.C., and the learned Civil and Sessions Judge has, to my mind, failed to appreciate the true basis and import of the decision.
5. Neither the Criminal Procedure Code nor the Hindu Marriage Act anywhere provides that a decree for judicial separation operates as a bar to a claim for maintenance under Section 488 of the former enactment, and there can, consequently, be no warrant for holding that it has that effect. Of course, if the decree goes to establish any fact which, on the terms of Section 488, Cr.P.C., itself, precludes a claim for maintenance, the claim may be said to be barred. What may deprive the wife of a right to claim maintenance under Section 488, Cr.P.C., is, therefore, not the bare fact of the decree but the establishment by means of the decree of any of these facts which, according to Section 488, Cr.P.C., disentitle a wife to a claim for maintenance. If the decree for judicial separation does not establish any such fact, it cannot, obviously, take away the right conferred upon a wife by Section 488, Cr.P.C.
6. Sub-section (4) of Section 488, Cr.P.C. provides that no wife shall be entitled to receive an allowance from her husband under that section if, without any sufficient reason, she refuses to live with her husband. The decree for judicial separation which was involved in the case of 0044/1966 : AIR1966All133 , established the fact that the claimant was without any sufficient reason, refusing to live with her husband, and it was for this reason that the decree was held to act as a bar to the claim. The decision in the above case cannot be interpreted as laying down that, irrespective of the nature or the decree or the facts which form its basis, a decree for judicial separation bars a claim for maintenance under Section 488, Cr.P.C.
7. The question, therefore, is whether the decree for judicial separation passed against Smt. Atar Kunwar establishes any of those facts which disentitle her to receive an allowance under Section 488, Cr.P.C. It is not in dispute that for several years past the parties have been living separately. Prior to the decree for judicial separation this separate living was, however, not the result of mutual consent. The wife accused the husband of cruelty towards her and the husband charged the wife with living in adultery. The separate living was the result of an establishment and there is nothing to indicate that the parties had ever before the decree for judicial separation agreed to live separately. But, from the date of the decree the position clearly underwent a change and there seems to be no doubt about the fact that, thereafter, their separate living has been by mutual consent.
8. It is true that separate living of a couple brought about only by the force of circumstances wantonly created by the husband cannot be said to be by mutual consent. An unwilling submission to the compulsion of such circumstances on the part of the wife who finds herself helpless in face of them cannot constitute consent. But when such is not the case, and the separate living proceeds from the common desire of the husband and the wife to live separately, whatever the reason for the desire may be, it is certainly by mutual consent. In the instant case the husband Nathu Ram obviously expressed his desire to live separately by instituting a proceeding for judicial separation. The wife, Smt. Atar Kunwar, did not oppose the petition of her husband and prayed that a decree for judicial separation be passed. As already noted, she further stated that she was living with her father for the preceding three years and was not prepared to go to her husband then or ever afterwards.
It was on the basis of this statement of Smt. Atar Kunwar which was expressive of her own desire, that the decree for judicial separation was passed. The decree, therefore, only conferred the sanction of the Court upon what both the parties desired and gave rise to certain legal consequences which they themselves wanted to bring about. Whatever might originally have been the reason for the separate living I think that from the date of the consent decree for judicial separation passed on 13-11-1964, if not from 10-11-1964 when Smt. Atar Kunwar made an application praying that such a decree be passed, the parties must be regarded as having started living separately by mutual consent. This separate living did not have for its basis the decree for judicial separation but the mutual consent on which the decree was itself founded.
9. Whether a husband and a wife are living separately by mutual consent has in most cases to be determined on the basis of their conduct and the surrounding circumstances. The authorities dealing with the question as to what amounts to living separately by mutual consent can, therefore, only indicate broad lines of approach to that question and not lay down any fixed rules of judgment. I need not, therefore, discuss the cases bearing on the point and may only observe that the view that I have taken is in consonance with the view expressed in Ram Saran Das v. Ram Piari 0043/1936 : AIR1937All115 , Smt. Chameli v. Gajraj Bahadur Gupta : AIR1954All33 , Dr. Mukand Lal v. Smt. Jyotishmati and J. Chand Toon v. Ma Tai, AIR 1935 Rang 359.
10. Since Smt. Atar Kunwar and Nathu Ram have been living separately by mutual consent the former is not entitled to receive any maintenance allowance under Section 488, Criminal P. C. Her claim, in so far as it relates to an allowance for herself, must therefore be rejected. She may of course pursue such remedies as may be available to her under the provisions of the Hindu Marriage Act.
11. Smt. Atar Kunwar has, however, claimed a maintenance allowance not only for herself but also for her two children. The Sub-Divisional Magistrate granted a consolidated allowance of Rs. 30 per month and the learned Civil Judge has not at all considered the claim made by Smt. Atar Kunwar on behalf of the children. The fact that the wife and the husband are living separately by mutual consent creates only a personal disability in the wife for receiving an allowance for herself under Section 488, Cr.P.C. and it does not bar a claim made by her on behalf of her children. It is a matter of no consequence that the children are living with the mother, and this circumstance cannot deprive the children of their right of receiving a maintenance allowance under Section 488, Criminal P. C. if they are otherwise entitled to it. The two capacities in which the application under Section 488, Criminal P. C., has been filed by Smt. Atar Kunvar and the two heads of claim mentioned in it have to be kept apart.
The rejection of Smt. Atar Kunwar's claim for allowance in regard to herself cannot entail the rejection of the claim made by her on behalf of the children has not been specifically and separately considered by the Sub-Divisional Magistrate it appears necessary to remand the case and I accordingly do so (Sic). The claim of Smt. Atar Kunwar in so far as it relates to an allowance for herself shall stand rejected, but the Sub-Divisional Magistrate will decide what allowance, if any, is payable by Nathu Ram for the maintenance of the children mentioned in the application of Smt. Atar Kunwar and then pass such orders as the case may require.
12. The reference is accepted partially as indicated above, and the case is sent back to the Sub-Divisional Magistrate Jalaun for being disposed of in accordance with the directions given in this order.