S.S. Byas, J.
1. This revision raises interesting question of law as to whether a consent decree of divorce dissolving the nuptial tie of a Hindu couple precludes the wife of claim maintenance from her ex-husband under Sub-section(4) of Section 125 of the Code of Criminal Procedure.
2. It would be proper to briefly notice the relevant facts giving rise to this revision-petition. The marriage between the parties was solemnized n accordance with the traditional Hindu rites and ceremonies somewhere seven year before in December, 1975. According to wife a male child was born in her from this wed-lock nearly four years after the marriage. The child was named as Gopal. The relations between the spoue however, did not remain sweet for long and the husband started ill-treating the wife He started ill-treating her and ultimately turned her out along with the child from his-roof The wife thereupon initiated proceedings for maintenanc against the husband but ultimately withdrew it on being assured by him then future he would treat her nicely with kindness. The husband, however did not fulfil his solemn promise as he wanted to have another wife The wife thereafter initiated a proceeding for restitution of conjugal rights Lains the husband in the Court of District Judge Udaipur Again, some person intervened and the dispute was resolved between the parties The husband once more made a promise not to ill-treat her and to have with her in the city of Udaipur. He also submitted sureties in this connection were the District Judge and the proceeding, therefore, came to an end. The' husbandagain failed to keep his promise. He took her to village Dabok and unlawfully confined her there in a bid to compel her to commit suicide, wife's father on being apprised to her confinement moved the learned Munsif Judicial Magistrate, Nathdwara to get her released. The husband took her and the minor child Gopal to village Bagol where again she was physically torturted. A criminal case was instituted against the husband in that connection which was pending investigating with police When the wife ultimately came out of the unlawful confinement, she moved an application on October 23, 1975 under Section 125 of the Code of Criminal Procedure in the Court of learned Munsif & Judicial Magistrate, Nathdwara Gainst the husband for providing maintenance to her and the minor child, Gopal. it was alleged by her that the husband having sufficient means, had that refused to maintain her and the minor child. It was alleged that husband was earning nearly Rs 600/- per month. She, therefore, claimed sum of Rs. 200/-per month to be allowed to her as maintenance to Maintain herself and the minor child. The application was resisted by the husband. Though the marriage was admitted by him, all other averments were categorically denied. According to him Gopal was not his legitimate or illegitimate child and was not born to the wife from his lion. It was alleged by the husband that the wife was leading an adulterous life having illicit relation with number of persons. The allegations of cruelty and beating etc Anted The alleged that the wife wanted to live with her paramour (not named in the reply) and as such was not interested in living with him under his conopy The institution of various civil and criminal proceedings was admitted but it was submitted that all ended in his favour. The wife's claim of maintenance was, thus, sought to be defeated mainly on the ground of her leading an adulterous life and further on the ground that the minor Gopal was not his child legitimate or illegitimate. Both the parties adduced evidence in support of their respective allegations and assertions. It appears that the husband initiated a proceeding under the Hindu Marriage Act 1955 for dissolution of marriage by a decree of devorce. The divorce was ultimately granted on consent of the parties. It all happened during the pendency of the proceeding under Section 125. Cr. PC On the conclusion of enquiry the learned Magistrate held (1) the dissolusion of marriage between the parties by a consent decree of divorce showed that the husband and the wife were living separately by mutual consent and (2) the minor Gopal was not the child legitimate or illegitimate of the husband. As such, neither the wife nor the minor child were entitled for maintenance by the husband. The petition was consequently dismissed. Aggrieved against the said decision of the learned Magistrate, the wife has filed this n vision-petition on her behalf and on behalf of the minor Gopal.
3. I have heard the learned ccunsel for the parties and gone through the case file carefully.
4. In assailing the impugned order it was vehemently contended by the learned Counsel shri Gupta appearing for the wife and the minor that the whole approach of the Court below was erroneous and unsustainable in law It was argued that it is not there on record as to how a consent decree of divorce dissolving the matrimonial knot between the parties was passed and on what grounds The divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 is available only on a joint application of the couple. No such joint petition was filed by the parties before the District Judge It was inter alia argued that even where the marriage between the parties was dissolved by a consent decree of divorce, it did not absolve husband from the liability of providing maintenance do her and the minor child. The decree of divorce obtained by mutual consent should not be to show that the parties were living separately by mutual consent. In support of his contention Mr. Gupta relied upon Bai Tuhira v. Ali Hussain and Ors. : 1979CriLJ151 , Mariyumma v. Mohammed Ibrahim ARI 1978 Kerla. 23 and Bai Hansa Ben v. Patel Kanhayalal and Ors. 1980 Gurja rat Law Reporter 138.
5. Mr. Mathur appearing for the husband, on the hand contended that the view taken by the Court below was justified. Since the parties had got their marriage dissolved by a decree of divorce on mutual consent it should be taken that they were living separately from each other by mutual consent. It was urged that in case the view of the learned Magistrate is held legal, the case should be remanded as the other defence raised by the husband have not been dealt with by the Court below. I have taken the pective submissions into consideration.
6. Section 125 of the Code of Criminal Procedure corresponds with same provisions of Section 488 of the repealed Code A look into Section 125 Cr. PC. shows that momentous change of far reaching consequences introduced in the law of maintenance. Among the various change one is that maintenance has been made available even to a divorced wife so long she has not married after the divorce. As such the divorced wife is entitled to claim maintenance from her ex-husband. Her claim can be defeated only when the husband is a. He to make out one or more defences mentioned in Sub-section (4) Sub-section (4), which is relevant and has a direct bearing on the instant case, reads as under.
(4) No wife shall be entitled to receive an allowance form her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
7. In the instant case, the view taken by the Court below is that the husband and wife were living separately by mutual consent. Ho proceeded on the assumption that the decree of divorce between the parties by mutual consent amounts to their living separately by mutual consent.
8. Now whether the parties are living separately by mutual consent is question of fact and like all other facts must be proved by evidence. The separate living should be the result of a deliberate and express agreement between the parties. If the Court finds that the husband and wife are living separately by mutual consent, no order of maintenance can be passed under Section 125 Cr. PC. The pertinent question which requires deliberation in the instant case is whether on the basis of a consent decree dissolving the marriage, it should be taken that the panres were living separately by the mutual consent. The answer is furnished in Bai Tahira's case. It was urged in Bai rahira's case on behalf of the husband that Section 125(4), Cr. PC would apply in the absence of proof that the wife was not living separately by mutual consent. It may be observe 1 that in that case, a consent decree dissolving the marriage between the parties was obtained by them. It was, therefore, contended on behalf of the husband that in view of the consent decree dissolving the marriage between the panies it should be taken that the parties were living separately by mutual consent. The contention was rejected, It was observed in para No. 9 that:
That next submission is that the absence of mutual consent to live separately must be made out if the hurdle of Section 125(4) is to be over come. We see very hardly any force in this plea. The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill Do divorcees have to prove mutual consent to live apart? Divorce painfully implies that the husband orders her out of the conjugal home. If law has nexus with life this argument is still borne.
9. In Mariyagumm's case a Full Bench of Kerala High Court held that when the parties are living separately after a decree of divorce, may that be based on consent. it cannot be said that they are living separately by mutual consent. It was observed therein:
So is the case with the provision that if the husband and wife are living separately by mutual consent they shall not be entitled to receive the allowance No question of mutual consent would arise in the case of parties to a marriage which is dissolved. That clause is also evidently inapplicable to the case of a divorced woman.
10. The position, therefore, boils down to this that dissolution of marriage by a decree of divorce on mutual consent does not show that the parties are living separately by mutual consent There may be various reasons compelling the husband and wife to get their marriage dissolved by a decree of divorce on mutual consent. Generally, the decree of divorce on mutual consent is obtained by the couple when the relations between them stand completely reptured and there is no possibility of reconciliation between them The relations have sunk so de p that they cannot be redeemed by any sort of efforts. It was why Section 13B was introduced in the Hindu Marriage Act, 1955. This section is based on the ground that the husband and wife are living separately and further that they have not been able to live together and therefore they have mutually agreed that there marriage should be dissolved. Thus, a divorce by mutual consent is best on the assumption that like husband and wife have become so irretrievable that no patch is possible They, therefore, think it proper to get the marriage dissolved by a divorce on mutual consent. There is nothing in Section 13B of the Hindu Marriage Act which shows that the divorce by mutual consent should be taken as suggesting that the parties ale living separately by mutual consent. On the other hand, this section shows that it is based on the theory of a complete break-down of the marriage. I am, therefore, of the opinion that the dissolution of marriage between a Hindu couple by a decree of divorce based on mutual consent is not 'perse' sufficient to show that the couple was living separately by mutual consent To put the entire matter in simple words, the mutual consent mentioned in Section 13B of' the Hindu Marriage Act, 1955 should not be confused with the mutual consent mentioned in Section' 125(4) of the Code of Criminal Procedure. A divorce decree on mutual consent thus by no imagination can be taken to show that the husband and wife are living separately by mutual consent for the purpose of Section 125(4) Cr. PC.
11. Coming to the instant case, the parties have not proceed their pleadings which they filed in the District Court for seeking the divorce decree Not only so, even the judgment and decree passed by the learned District Judge have nor been submitted by them. In such circumstances, it cannot be said that the marriage between the parties was dissolved by a decree passed on mutual consent. Even if these documents were filed still then it was the duty of the husband to allege and prove that he and the wife were living separately by mutual consent the pleadings and judgment of the divorce protecting were cerainly relevant as a piece of evidence though not conclusive to prove the mutual consent mentioned in Section 125(4), Cr. PC. The is nothing on record of the trial court to show that a decree of divorce dissolving the marriage based on mutual consent of the parties was obtained The impugned order cannot be, therefore, maintained so far it relates to the refusal of maintenance to the wife.
12. The husband, as stated earlier, opposed the wife's application for maintenance on the ground of her living in adultery. The learned Magistrate has not dealt with this defence of the husband and dismissed the wife's nation on the ground that the parties were living separately by mutual consent. His this finding tint the parties were living separately by mutual consent-being set aside in this revision proceeding The case should therefore. back to the learned Magistrate to decide the other defence raised refusal of maintenance to the wife.
12. As regards the claim of the minor child Gopal the learned Magistrate held that he was not legitimate or illegimate child of the husband Bherulal. It was argued by Mr. Gupta that this finding of the Court below is also erroneous and unsustainable. Since the case is being remanded to the Court below as indicated above. I refrain myself from expressing any opinion on this finding of the Magistrate. In the circumstances of the case and specially when be case is being remanded, the above finding of the learned Magistrate trate relating to the minor Gopal is also-set-aside. He will decide the whole case afresh, taking his judgment to have been completely set-aside by this Court.
14. In the result, the revision is allowed. The judgment of the learned Munsif & Judicial Magistrate. Nathdawara dated July 31, 1998 in Criminal Miscellaneous Case Order 39 of is 1975 is set-aside. The case is sent back to him to decide the case afresh in the light of the observations made by me. The maintenance proceeding is pending since 1975. The parties are directed to appeal in the Court below on July 30, 1984.