JOSEPH v. SWAPNA

challenged the order for any reason whatsoever. Petitioner has come up in revision.

3. It is contended by learned counsel for petitioner that in view of Section 125(4) of the Code of Criminal Procedure (for short, “the Code”) respondent No.1 is not entitled to claim maintenance from petitioner. Learned counsel submits that Exts.D1 and D3 would show that petitioner and respondent No.1 are living separately by mutual consent and that barred respondent No.1 from claiming maintenance. Learned counsel has placed reliance on the decisions in Amarendra Nath Bagui v. Gouri Rani Bagui(1990 Cri.L.J. 2415) and Malayaiah v. G.S.Vasantha Lakshmi (1997 Cri.L.J. 163). In response, learned counsel for respondents contend that no question of living separately by mutual consent is involved and that it was on account of ill-treatment and neglect that respondents could not live with the petitioner and had to withdraw from his company. That according to the learned counsel, is re-inforced by the deliberations in the PCSJ as seen from Ext.D3. Learned counsel also contends that such a question does not arise for consideration since respondent No.1 when examined as PW1 expressed her willingness to live with the petitioner but, petitioner when examined as CPW1 refused to take her. RP(FC) No.157/2005 4

4. Under Sub-section (4) of Section 125 of the Code, a wife is not entitled to claim maintenance from her husband if, among other things, “...................... they are living separately by mutual consent.” To be precise, to disentitle a wife to claim maintenance from her husband it has to be shown that herself and husband are living separately by mutual consent. The separate living must be the result of mutual consent. “Consent” as defined in Section 13 of the Indian Contract Act presupposes a free and voluntary meeting of minds. It involves consensus ad idem between two or more persons. When it comes to Sub-section (4) of Section 125 of the Code, that consensus ad idem is between the husband and wife.

5. If a wife is unable to live with her husband on account of ill- treatment, neglect or refusal to maintain and decided to live away from the husband and ultimately both decided to part ways, that cannot be understood as the husband and wife “living separately by mutual consent”. The pressure of circumstances may have compelled the wife to agree with the husband to part ways. That did not indicate free and voluntary mind on the part of the wife to live separately. Davis C.J. speaking for the Bench in Tekchand Partabrai v. Kalavantibai [(28) AIR 1941 Sind 214] observed, RP(FC) No.157/2005 5 “Where a woman who is helpless and has been ill-treated by her husband has to submit or thinks she has to submit to a sum agreed by her panchayat, it cannot be said that she is living separately by mutual consent within the meaning of sub-s.(4) of S.488.” (Section 488 (4) of the old Code corresponds to Section 125(4) of the present Code). The same issue was considered by the Punjab High Court in Ram Chand v. Jiwan Bai [AIR 1958 Punjab 431]. The scope of the expression “mutual consent” occurring in Section 488(4) of the old Code was considered and it was held, “Mutual consent as used in sub-section means a consent on the part of the husband and the wife to live apart no matter what the circumstances may be. The test to find out whether the husband and wife are living apart by mutual consent is to see whether the agreement of separate living and payment of maintenance was the outcome of the desire of both parties independently reached by them or if one of the parties was forced by the circumstances to submit to such agreement. Thus where a wife refused to live with the husband on some special ground, such as cruelty, or the fact that he is keeping another RP(FC) No.157/2005 6 woman or has remarried, it cannot be said that the husband and wife are living apart, by mutual consent. Nor does the fact that the wife's application under the section was compromised by the husband agreeing to pay a certain amount as maintenance for her would make the section inapplicable or could have the effect that it could no longer be said that the husband was neglecting or refusing to maintain the wife”. (emphasis supplied) A learned single Judge of Gujarath High Court in Ajitsing Hakamsing v. Labhkaur [1971 Cri.L.J. 888] stated that living separately by mutual consent is the outcome of the desire of both parties independently reached by each of them and none of them should take recourse to separate living owing to circumstances brought about by one of them.

6. I shall refer to the decision relied on by learned counsel for petitioner, Amarendra Nath Bagui v. Gouri Rani Bagui referred supra. There was an agreement between the husband and wife as per which they decided to live separately. It was held that the agreement disentitled the wife from claiming maintenance from the husband. In paragraph 6 it was observed, “.................where 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..........” RP(FC) No.157/2005 7 (emphasis supplied) In the next decision relied on by the counsel for petitioner (Malayaiah v. Vasantha Lakshmi, referred supra) the husband in answer to an application for maintenance preferred by the wife put up an agreement allegedly executed by the husband and wife and as per which the parties were living separately. The High Court found that the agreement was executed by the parties and that disentitled the wife to claim maintenance under Section 125(4) of the Code though, she may have a right to claim maintenance under the provisions of the Hindu Marriage Act.

7. To disentitle a wife to claim maintenance from her husband under Section 125(4) of the Code, she must have voluntarily consented with the husband to live separately and the mutual consent should precede their living separately. The separate living should follow and be the result of the mutual consent. The separate living must proceed from a common desire. The agreement to live separately to come under the mischief of Section 125(4) of the Code must be the result of common desire and mutual consent not influenced by compulsion of circumstances. If on the other hand on account of circumstances which made it difficult for the wife to live with the husband she withdraw from his company and while so under compulsion of circumstances agreed to jointly move for a divorce it cannot be said that she is living separately by mutual consent and that made her ineligible to claim maintenance under Section 125(4) RP(FC) No.157/2005 of the Code. 8

8. Ext.D1 is pressed into service by the petitioner in this case to show that the parties are living separately by mutual consent. Learned counsel has invited my attention to the averments in paragraphs 2 to 5 of Ext.D1. What is stated therein, in short is that there was difference of opinion between petitioner and respondent No.1 with regard to the level of education, cultural standards and there existed sexual incompatibility in addition to family circumstances and on account of those matters the marital relationship between the parties failed irretrievably. It is stated in paragraph 4 that parties have been living separately for more than three years. In paragraph 5 it is stated that parties have taken back all the properties, cash, ornaments, etc. presented in connection with the marriage and that “at present nothing is due to either party from the other either by way of maintenance or otherwise. (Learned counsel for petitioner has got a case that the recital in paragraph 5 of Ext.D1 amounted to a relinquishment of the right for future maintenance by respondent No.1 about which I would refer a bit later). On going through Ext.D1, I am unable to find any statement to the effect that petitioner and respondent No.1 are living separately by mutual consent. Ext.D1 as I understand only says that on account of difference of opinion between the parties they have been living separately and they agreed to seek divorce as per a joint petition. Hence the contention that respondent No.1 is living separately by mutual consent cannot stand. There is evidence to show that petitioner had subjected respondent No.1 RP(FC) No.157/2005 9 to cruelty and on account of that, she had to withdraw from the company of petitioner and live separately from him. This is clear from the evidence let in by the parties in the court below and from Ext.D3.

8. Assuming, alternatively that a wife agreed to live separately from her husband, it was open to her to withdraw or revoke that consent so far as she is concerned in which case her ineligibility to claim maintenance ceases. In A.S.N.Nair v. Sulochana (1981 KLT 568) this Court has held that when mutual consent ceased to exist, wife can claim maintenance. That, respondent No.1 has not come forward to give evidence in support of Ext.D1, joint petition for divorce and its consequent dismissal indicated that she resiled from the agreement to seek divorce by mutual consent. This is also clear from the evidence of respondent No.1 as PW1 that she is prepared to live with the petitioner but, petitioner was not agreeable for that. A claim for maintenance under Section 125(1) of the Code has to be decided as the situation stands on the date of the order. It is within the power of the court to take into consideration facts and circumstances upto the date of the order and brought on record. Thus, as on date of the order there was an expression of willingness on the part of respondent No.1 to live with the petitioner and the latter rejecting that. Hence also contention of petitioner that respondent No.1 is living separately by mutual consent and that disentitled her to claim maintenance cannot stand.

9. I shall now refer to the contention that the statement in paragraph RP(FC) No.157/2005 10 5 of Ext.D1 amounted to a relinquishment of the claim for maintenance by respondent No.1. For one thing, law does not recognize an agreement whereby neglected parents, wife or children relinquished their right for future maintenance. It is not Section 125(1) of the Code which confers right for maintenance. That provision only prescribes the procedure for enforcement of the right. The provision of Section 125(1) of the Code is meant to prevent vagrancy and to ameliorate distress. It is a piece of social legislation meant for the benefit of neglected parents, wife and children who are unable to maintain themselves. That being the position a claim for future maintenance cannot be relinquished since any agreement in that way could only be treated as against the public policy envisaged under Section 125(1) of the Code and hence invalid. This view has been accepted by this Court in Sadasivan Pillai v. Vijayalakshmi [1987 KLJ 347].

10. Secondly, I am unable to understand from the statement in paragraph 5 of Ext.D1 that there is a relinquishment of the right for future maintenance. What is stated therein is only regarding maintenance payable till date of Ext.D1 which stands on a different footing from the claim for future maintenance. Petitioner, therefore taking recourse to the statement in paragraph 5 of Ext.D1 cannot seek exoneration from liability to pay maintenance to respondent No.1. So far as respondent No.2 is concerned, irrespective of the propriety of her custody petitioner being the father is bound to maintain her.

11. There is no contention that the amount awarded as maintenance is RP(FC) No.157/2005 11 beyond the capacity of petitioner. Nor is the amount awarded excessive. The above discussion leads me to the conclusion that as found by the court below petitioner has to pay maintenance to his wife and daughter. Revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge.