V.N. Varma, J.
1. This revision has arisen out of a case Under Section 125 of the Cr.PC
2. Smt. Anguri (O.P. no. 1) is the legally wedded wife of the applicant (Bishambhar Dass). They were married some time in the year 1944. After their marriage they lived a normal married life for some years and even a daughter was born out of their wedlock. Things were, however, not destined to be smooth and differences started growing up between them. It is said that the applicant was a man of loose morals and developed illicit intimacy with one Smt. Jagwati. Opposite party No. 1 resented this thing and asked the applicant to mend his manners but he would not listen to her. Instead, his attitude towards her hardened and very often he ill-treated her. He even turned her out from his house. Some well-wishers intervened and a reconciliation took place between them. The applicant promised not to have any connection with Smt. Jagwati and opposite party no. 1 then moved to his house. It is further said that after about 5 years or so, the applicant again took to bad habits and developed intimacy with another woman, named, Shakuntala. He was also said to have taken to drinking and gambling. His wrath again fell on opposite party no. 1 and he turned her out from his house. Being under distress, she filed the present petition and claimed Rs. 250/-per month by way of maintenance.
3. The applicant admitted his marriage with opposite-party no. 1. He, however, denied to have fallen into any of the bad habits as alleged by opposite-party no. 1 in her petition, His contention is that from the very beginning there was incompatibility between them and she felt great diffidence in living with him. Likewise, he also found it difficult to live with her. They, therefore, entered into a written agreement dated 2-4-1954 and mutually agreed to live separately. According to terms of the agreement, he paid her a sum of Rs. 3,500/- as future maintenance allowance. Thereafter he was not to have any relations with her. In view of the aforesaid agreement, he averred that the opposite-party No. 1 was not entitled to claim anything by way of maintenance from him. In any event, he alleged, that the amount of Rs. 250/-claimed by opposite-party no. 1 as maintenance was highly excessive.
4. The learned Magistrate held that opposite-party no. 1 was not bound by the written agreement dated 2-4-1954 as when she signed it she had not understood its full import because the document had been written in Urdu, a language which she did not know. Accordingly, he placed no reliance on this deed of agreement. He held that the applicant had been ill-treating opposite party no. 1 and had neglected to maintain her and, he, therefore, allowed her a maintenance allowance of Rs. 100/- per month. Aggrieved, the applicant has come up in revision to this Court.
5. At the very outset the learned counsel for the applicant contended that opposite party no. 1 was bound by the written agreement dated 2-4-1954 and, therefore, in accordance with the terms of that agreement, she was not entitled to claim any maintenance allowance as she had already been given Rs. 3,500/-by way of maintenance. Opposite-party no. 1 has denied the existence of this agreement. Therefore, the first question that calls for answer is whether the parties had really executed any agreement deed or not. The written agreement is Ext. Kha-1. It admittedly bears the thumb-mark of opposite party no. 1. She was also said to have signed it. At first she admitted her signature on it, but later on disowned it. I think the signature on the document is really that of hers and she disowned it just for the purpose of this case. Once it is proved that the agreement in question is both signed and thumb-marked by her, it is for her to show that she had not understood the contents of that agreement when she signed and thumb-marked it. It is true that the agreement is written in Urdu and opposite party No. 1 does not know Urdu, but from this thing alone it cannot be inferred that she had not been aware of the contents of this document. Suraj Prakash was one of the witnesses of this document and he has been examined by the applicant in this case. He has stated that opposite party no. 1 had signed and thumb-marked the agreement after knowing its contents-According to. him, her brother Ram Prakash alias Chotey Lai was also present at the time when the document was executed. Opposite party no. l denied that Ram Prakash alias Chotey Lai was her brother but her denial appears to be false. Her father's name is Sewa Ram and so is the father's name of Ram Prakash alias Chotey Lai. I do not think that any fraud could have been played on opposite party no. 1 in the presence of her brother. As the things stand, my definite impression is that opposite party no. 1 was fully aware of the contents of the written agreement when she signed and thumb-marked it. The court below was, therefore, not correct in ignoring this document on the the plea that opposite party no. 1 had not known its contents when she thumb-marked and signed it.
6. Now the next question that calls for answer is whether this written agreement will act as a bar to the present petition for maintenance. According to the learned counsel for the applicant, it will act as a bar because it is clearly mentioned therein that the parties had agreed to live separately by mutual consent. It is true that in the agreement it is mentioned that the parties have agreed to live separately by mutual consent, but the mentioning of such a thing by itself will not come in the way of opposite party no. 1 to claim maintenance if the circumstances of the case go to show that her desire to live separately was not the result of her own free choice but was the result of something which forced her to live separately. Opposite-party no. 1 had been saying from the very beginning that the applicant was a man of loose morals and had first kept Smt. Jagwati as his concubine and later on Smt. Shakuntala. She mentioned, this thing in her petition and also mentioned it in her statement on oath. Her daughter was examined from her side and she also stated the same thing. One will find that both of them were not subjected to any cross-examination on this aspect of the matter. This went to show that the applicant did not intend to challenge or break their testimony on this point. In his statement also the applicant never stated that Smt. Jagwati and Smt. Shakuntala were not his concubines. Therefore, as the evidence stands, it stands proved that the applicant was not a good charactered man and had developed illicit connections first with Smt. Jagwati and then with Shakuntala. He had also kept them at his house. In such a state of affairs there was nothing surprising if opposite-party no. 1 left the roof of applicant's house and preferred to live separately from the applicant. Ob-J viously she was compelled to live sepa-i rately because her husband kept mistresses at his house against her will. In the circumstances in which she found herself she could certainly live separately from her husband in view of Explanation II attached to the second proviso to Sub-clause (3) of Section 125 of the Cr.PC In this view of the matter it could not be said that opposite party no. 1 had been living separately by mutual consent so as to operate as a bar to claim maintenance allowance Under Section 125 of the Cr.PC
7. Despite what I have mentioned above, I feel that the petition of opposite party no. 1, as it is framed, cannot succeed. Under Section 125(1)(a) of the Cr.PC maintenance allowance cannot be granted to every wife who is neglected by her husband or whose husband refuses to maintain her, but can only be granted to a wife who is unable to maintain herself. In the present case, opposite party no. 1 has not mentioned in her petition that she is unable to maintain herself. In her statement also she did not say so. AH that she said was that she was maintaining herself with some difficulty. This is not tantamount to her being unable to maintain herself. Her counsel realised the difficulty in the way of his client and he, therefore moved an application for amendment of the petition for maintenance. He wanted that he may be -permitted to add a clause in, the petition that opposite part no. 1 is unable to maintain herself. I am afraid, I cannot accede to his request because there is no provision in the Cr.PC for allowing such an amendment application. However, I think, it will serve the cause of justice if the case is remanded to the trial court with the direction that it should give an opportunity to opposite party no. 1 to prove the merit of her claim after permitting her to adduce evidence on the point that she is unable to maintain herself.
8. In the result, I allow the revision, set aside the order passed by the Court below and remand the case to the trial court with the direction that it should try the case afresh in the light of the observations made above. The learned Magistrate will provide full opportunity to the applicant to contest and refute the claim of opposite party no. 1 for maintenance. The parties will appear before the trial court on 10th March, 1978. The record of the case should be sent down to the trial court forthwith. The stay order dated 17-11-1976 is vacated.