1. This rule was issued calling upon the District Magistrate of Malda and upon the opposite party to show cause why an order passed under Section 488, Criminal P.C. directing a has band to pay maintenance to his wife should not be set aside.
2. The material facts are not seriously disputed. The petitioner in the application under Section 488, Criminal P.C., was the wife. She asserted that she was married to her husband (the opposite party) in the year 1308 B.S. when she was 6 or 7 years old, and the opposite party was 12 or 13 years old; that they lived together as husband and wife, for some years, possibly 10 years; and that she was then driven out by her husband who ill-treated her; and that she lived with her father from then onwards and has not since lived with her husband. In the year 1942, she presented an application under Section 488, Criminal P.C., before a Magistrate. The husband opposed the application, and denied that she was his wife. The husband's brothers intervened and they agreed to make a payment of Rs. 1000 to the petitioner provided that she gave up all future claims to maintenance. The petitioner understanding this agreement, agreed to give up all future claims and accepted that sum of Rs. 1000. Thereafter until she made the present application, she lived apart from the husband. Having spent the money possibly on necessities, though on this point there is not sufficient material to justify a decision-she presented the present application under Section 488, Criminal P.C. The husband opposed this application. Again he denied that he had married the petitioner, but he also pleaded that as under Section 488 (4), Criminal P.C., the parties were living separately by mutual consent, she was not entitled to receive any allowance under this particular section.
3. The learned Magistrate on a consideration of the evidence came to the conclusion that the parties were married. This is a finding of fact which cannot be challenged before me. The learned Magistrate further found that as the result of negotiations with the husband's brothers, the petitioner did in 1942 give up all claims upon the husband and received Rs. 1000 as consideration for so doing, but he held that there was no mutual consent to living apart. The learned Sessions Judge on revision came to the same conclusion and said that because the arrangement in 1942 was made with brothers of the husband, it did not amount to mutual consent.
4. In my opinion, the Courts below were wrong on this point. It is clear that since 1942, if not earlier, the husband has been denying that the petitioner is his wife. He insisted that she had no claim on him that he had no claim on her and that he would not keep her. This means clearly that he consented to her living apart. The wife in 1942 dropped the proceedings under Section 488, Criminal P.C. and consented to give up her claims to live with her husband and accepted Rs. 1000 as consideration. It seems to me perfectly clear that the parties both consented to living apart, at all events in 1942 and until the present application was filed. It is clear therefore to my mind that the parties were living separately by mutual consent until the application under Section 488. Criminal P.C. was filed. In these circumstances, it seems to me that sub Section (4) of Section 488, Criminal P.C., is a bar to the wife being granted any allowance under the provisions of this section. Whether she may claim by any other procedure is a matter on which I express no opinion.
5. This Rule is made absolute. The order of the learned Magistrate is set aside and the application of the wife is rejected.