A.N. Grover, J.
1. This case is the outcome of an unfortunate trouble between a husband and a wife, who both belong to respectable families. The husband, Dr. Mukand Lal, is the Deputy Medical superintendent of Ripon Hospital, Simla. He married Smt. Jyotishmati on 11-12-1932. It is common ground that the wife conceived eleven times but on each occasion she used to have an abortion in the fourth month of the pregnancy. On 14-12-1948, an agreement was entered into between the parties in the presence of the father of the wife and two of her other close relations Shri Jindra Lal, Bar-at-Law, and Shri Shankar Nath, Advocate of Simla.
It was recited in the agreement that the parties had mutually agreed to separate and to live separately from each other as 'it is best for the two parties to separate and to remain separate on account of the differences and other circumstances that have arisen between them.' The husband was to pay maintenance allowance at the rate of Rs. 200/- per month. The other material condition worth noticing is that the wife was to be at liberty to undertake any work or avocation which did not have the effect of lowering the position or status of the husband. After the agreement the wife stayed in her husband's home for a little over a month and thereafter she started living separately. In April, 1950, the husband married another wife Dr. Rama Mehra who was working in a hospital at Simla.
Two children have been born of this marriage, one is a son and the other, a daughter. The husband continued to pay the monthly allowance to the first wife up to 31-3-1955, but thereafter he discontinued the payment. On 1-7-1956 Smt. Jyotishmati filed an Application under Section 488 of the Criminal Procedure Code in the Court of the District Magistrate at Simla. It was stated inter alia in the application that in or about the year 1947 Dr. Mukand Lal started thinking of another marriage and by his inconsiderate treatment bordering on cruelty he compelled the applicant to seek separate residence. Thereupon the doctor agreed to pay Rs. 200/- per mensem to her with effect from 14-12-1948. It was further stated that the husband had neglected and refused to maintain the applicant and was demanding that she should resume residence in his house which she was not prepared to do in the circumstances then obtaining.
Maintenance was claimed at the rate of Rs. 500/-per month. Dr. Mukand Lal denied allegations of maltreatment and put forward the main objection that as the parties were living separately by mutual consent no order could be made under Section 488, Criminal Procedure Code. The case was tried by Shri Waryam Singh, Magistrate, 1st Class, who went into the entire matter at great length. He ruled out the agreement, Exhibit D.D., as being inadmissible be-cause it was not properly stamped. He considered the evidence produced by the parties with regard to the circumstances under which the agreement was executed on 14-12-1948 and in pursuance of which the parties started living separately.
He came to the conclusion that as Smt. Jyotishmati was found to be incapable of giving birth to a child and the husband wanted to re-marry he could not have been treating her properly as had been deposed to by a number of witnesses and this maltreatment compelled her to seek separate residence. This, according to him, could not be regarded as living separately by mutual consent. The Magistrate ordered the payment of Rs. 300/- per month as maintenance to be made to Smt. Jyotishmati.
2. Dr. Mukand Lal preferred a petition for revision under Section 435 of the Criminal Procedure Code to the Court of the Sessions Judge. While considering the circumstances in which the agreement. Exhibit D. D., was executed the learned Sessions Judge observed as follows:
'The agreement D.D. no doubt recites that the parties decided to live separately by mutual consent. It is, however, also stated therein that this decision was due to differences between them and other circumstances. According to the respondent the reason why it was decided that she should live separately was that the petitioner had decided to go in for second marriage. The fact that there were suggestions for second marriage of the petitioner even as early as 1946 is admitted by the petitioner, though according to him those suggestions emanated from the respondent and her father, who wanted the petitioner to marry the sister of the respondent, to which the petitioner did not agree. This is, however, denied on behalf of the respondent.
The statement of the respondent that the differences between her and the petitioner were due to the decision of the latter to go in for second marriage is also corroborated by the statements of Shri Jindar Lal Advocate of Delhi P.W. 1 and Shri Shan-fear Nath Advocate of Simla P.W. 7. Both these witnesses are close relatives of the respondent and as such are expected to know the internal affairs of the parties. They also signed the agreement. Exhibit D.D., as attesting witnesses. The learned Magistrate accepted the evidence adduced on behalf of the respondent in this respect and there seems, in my opinion no cogent ground in revision to set aside the finding in this respect.'
The learned Sessions Judge went into the documentary and oral evidence which had been produced by the parties and came to the conclusion that in the present case when the husband proposed to contract a second marriage the natural reaction of his first wife would be unfavourable to the proposal and she would prefer to live separately from him. The husband would also desire that his first wife should live separately to save himself and his second wife from embarrassment and any possible ugly scenes,
In his opinion the decision of the parties to live separately after 1948 was not due to any mutual antipathy, but because of the circumstances wherein the respondent could not stay in the house of the petitioner. After considering the statement of law as contained in Note 23 under Section 488 of the Code of Criminal Procedure by Chitaley, 5th Edition, as also the amendment made in Section 488 by Act IX of 1949, he held that the decision of the wife and the husband to live separately was not by mutual consent. It is unnecessary to refer to the consideration by the learned Sessions Judge of the other defence put forward by the doctor that Jyotishmati had accepted a low menial job in the Family Planning Organisation, Punjab.
Suffice it to say that according to the learned Sessions Judge there was nothing to show that the aforesaid job was such as was intended to lower the status of the doctor. The salary which she was getting was Rs. 125/- per mensem. After considering the income of the doctor and other relevant matters the learned Sessions Judge recommended that the order of the Magistrate be modified by reducing the amount of maintenance to Rs. 200/- per mensem instead of Rs. 300/-
3. Shri D. R. Manchanda, who has appeared on behalf of the doctor, has agitated mainly the question of the agreement referred to before and the effect of living separately by mutual consent on the application under Section 488, Criminal Procedure Code. He has referred to the evidence with regard to the circumstances which preceded the agreement entered into in December, 1948 and the relations which subsisted between the parties after the agreement. The Magistrate and the learned Sessions Judge had given careful and considered attention to the evidence put before them and it would not be proper for this, Court to alter their findings when it cannot be shown that they have committed any serious error in the estimation of evidence. The question of law, therefore, has to be examined in the light of the findings which have been given by the Courts below,
4. The provisions of Section 488(4) are as follows : 'No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refused to five with her husband, 'or if they are living separately by mutual consent'.'
The essential question is what meaning is to be given to the words underlined (here in single quotation marks -- Ed.). Mr. Manchanda has strongly relied on Krish-nappa v. Sivagami Achi, AIR 1953 Mad 549 (A), & the cases referred by Ramaswami J. in that decision. There, an agreement had been entered into between the husband and the wife. It was held that the remedy of the wife did not lie under Section 488, but she could file a civil suit for denouncing the agreement or for getting enhanced maintenance on account of the rise in costs. Ramaswami J., however, did not discuss the matter fully as to what was the meaning of mutual consent as employed in Sub-section (4) of Section 488, Criminal Procedure Code.
The test that has been laid down in some authorities that the Court should find whether the agreement for living separately was the outcome of the desire of both parties independently reached by them, or if one of the parties was forced to submit by circumstances to such an agreement was not considered. Reliance was placed on a judgment of Dalip Singh J. in Budhu Ram v. Khem Devi, AIR 1926 Lah 469(B). In that case the learned Judge observed that once a compromise was entered into to pay maintenance, there was no refusal to maintain on the part of the husband and therefore Section 488 did not apply. In Sham Singh v. Mst. Hakam Devi, AIR 1930 Lah 524 (C), Addison J. accepted the report of the Sessions Judge on the ground that a compromise had been effected in the course of proceedings under Section 488 and therefore no order could be made under the provisions o that section itself.
In none of these cases any such question arose which is being considered in the present case. In Nathun Sonar v. Mst. Maturwa Kuer, 49 Ind Cas 346: (AIR 1919 Pat 339) (D), it was observed that a contract voluntarily and freely made and entered into between the parties by reason of the ill-treatment of the husband would be an act of their own volition. These observations were purely obiter as in that case the husband and the wife were living apart in obedience to the decree of a Panchayat and it was held that they could not be said to be living apart with mutual consent within the meaning of sbu-s. (4) of Section 488. In S. W. Colbert v. Mrs, H. Gilbert, AIR 1933 Cal 776 (2) (E), a compromise had been effected in proceedings for maintenance under Section 488 and it was held that its enforcement came within the jurisdiction of a civil Court.
In that case there was no opposition to the rule and the point decided was of a different nature. In Ramsashi Mondal v. Nirode Barani Dasi, AIR 1948 Cal 186 (F), a compromise had been effected during proceedings under Section 488 and the parties had been living apart. It was held that they were living separately by mutual consent. A great deal of emphasis has been laid on a decision of the Saurashtra High Court in Govindram v. Ratanbai Nathuram, AIR 1956 Sau 105 (G). In that case it has been laid down that where there is already a compromise between the parties providing for separate maintenance, the compromise is binding whatever may be the reason for the wife living separately.
It may be that she can live separately from the husband on the latter's taking a second wife; all the same her remedy is to enforce the compromise which is subsisting and she cannot ignore it and insist on the husband paying her maintenance otherwise than in pursuance of the compromise. Her obvious remedy is to enforce the compromise in a civil Court and not an application under Section 488, Criminal Procedure Code. Shah C. J. discussed largely the meaning and scope of the two provisos in Sub-section (3) of Section 488. That provision, however, is not relevant in its entirety for deciding the point involved in the present case.
With regard to the effect of living separately as a result of a compromise, the learned Chief Justice referred only to certain Lahore cases and held that the remedy of the wife was to enforce the compromise in a civil Court. To my mind the authority which is apposite for the purposes of the present case is the decision of Randbir Singh J. In Chameli v. Gajral Bahadur, AIR 1954 All 33 (H). In that case also the wife was living separately as a result of a mutual arrangement and agreement.
After considering the Lahore cases and decisions of other High Courts Randhir Singh J. followed a previous decision of the Allahabad High Court in Ram Saran Das v. Mst. Ram Piari, AIR 1937 All 115 (I) He held that the words 'mutual consent' implied that the desire to live apart should emanate from both parties and that none of them should be forced to take recourse to separate living and ultimately to submit to it only as a result of circumstances brought about by one of the parties. The following observations of the learned Judge deserve particular notice :
'If a husband is unwilling to allow his wife to live with him, or has taken a second wife, the only course open to such a wife would be to live apart and if she, under those circumstances, agreed to accept maintenance and live separate, such a separate living would not be deemed to be the result of mutual consent. The test, therefore, should be to find out if the agreement for separate living and payment of maintenance was the outcome of the desire of both parties, independently reached by each of them, or if one of the parties was forced to submit by circumstances to agree to separate living and payment of maintenance.'
Another weighty reason was imported by Randhir Singh J. in support of the view which he adopted, According to him, if a party executes an agreement but does not pay maintenance or drives the wife to the necessity of filing a suit for recovery of maintenance from time, to time and then takes protection under the provisions of Section 488 (4), it would be difficult for a woman entitled to maintenance to get an effective remedy in Courts of law. Section 488 has been enacted only to meet such contingencies and to save a party entitled to maintenance from a prolonged litigation and to get an effective remedy Speedily and without much expense from a criminal Court.
With respect, I follow the view of Randhir Singh J. in its entirety. Whatever doubts may have existed prior to the amendment of Section 488 by Section 2 of the Code of Criminal Procedure (Amendment) Act, 1949, it seems to me, that all the previous decisions which were largely based on the effect of the refusal of the wife to live with the husband would no longer be good law, in view of the amended provision which is to the effect that if a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him.
If a husband decides to marry another wife and has actually married one, the first wife can legitimately claim to live separately, and if the husband and the wife mutually agree that she should do so, it cannot mean that the wife is living separately by mutual consent in the sense in which those words are used in Sub-section (4) of Section 488 of the Code of Criminal Procedure. The right which the law gives to the wife, in Section 488, to live separately if the husband contracts a second marriage will be defeated if living separately by mutual consent is to be given the meaning that whenever husband and wife decide to do so, whatever the compelling necessity for the same, it must be considered that they are living separately by mutual consent.
The meaning to be attributed to these words in the context in which they appear must be the same as has been given by Randhir Singh J. in the Allahabad decision referred to before. Mutual consent, according to him, would apply to separate living 'if such separate living was the result of a desire of both parties'. This desire should be based on the volition of both the parties without any clement of impelling or compelling circumstances, if a wife knows that the husband is determined to break up the marriage and to take another woman as his wife, and if she derides to live separately because of that reason, it cannot be said that the separate living is the result of any desire on her part to live away from her hearth and home willingly and without the clement of compulsion forcing the decision against her will.
In this view of the matter the decision of Jyotishmati to live separately after 1948 was not the result of a desire on her part to live separately because of her own seeking and personal volition, but she. was compelled to do so on account of the force of circumstances in which she was placed. I hold, therefore, that the view of the Courts below was quite correct that Dr. Mukand Lal could not seek the assistance of the provisions contained in Sub-section (4) of Section 488, Criminal Procedure Code.
5. It has been submitted by Mr. F. C. Mital on behalf of Smt. Jyotishmati that her application under Section 488, Criminal Procedure Code, was based on neglect and refusal to maintain apart from the agreement of December, 1948. It is somewhat extraordinary that although Dr. Mukand Lal places so much reliance on the agreement, but admittedly he has not paid anything to the wife since 1-4-1955. The reason put forward by him is most unsatisfactory and, to say the least, ludicrous. In spite of an agreement if it is found that it has not been acted upon, or that there is actual neglect or refusal at the time of application, it seems difficult to understand how the Magistrate is debarred from making an order under Section 488, Criminal. Procedure Code. For this reason also the application was maintainable and could not have been thrown out.
6. It has been argued before me on behalf of Dr. Mukand Lal that the amount of maintenances which the learned Sessions Judge has recommended to be awarded to Smt. Jyotishmati is exorbitant. The learned Sessions Judge has examined the paying capacity of Dr. Mukand Lal fully and he has recommended that the amount of maintenance should be Rs. 200/- instead of Rs. 300/- which has been fixed by the learned Magistrate. I find no sufficient reasons for differing from the view of the learned Sessions Judge.
7. For all the reasons stated above, I accept therecommendation of the learned Sessions Judge andmodify the order of the learned Magistrate only tothis extent that instead of payins Rs. 300/- permonth, Dr. Mukand Lal shall pay Rs. 200/- permonth to Smt. Jyotishmati. No order as to costs in thisCourt.