A.S.Srivastava, J. - (1.) THIS application under section 482, CrPC of Vjrendra Kumar is directed against an order dated 6-3-1981 of the III Special Judicial Magistrate Budaun, granting Rs. 100/- per month as maintenance to Smt. Kailasho (opposite party no. 2) and confirmed by the order dated 17-8-1981 of the II Additional Sessions Judge, Budaun, in Criminal Revision no. 143 of 1981.
(2.) THE marriage between Virendra Kumar and Smt. Kailasho stands dissolved by a decree dated 12-3-1979 passed by the District Judge, Pilibhit, in petition no. 10 of 1978. Though the parties were contesting this petition, the decree was passed on the basis of their mutual consent contained in a joint application moved by them before the District Judge, Pilibhit, in the said petition on the date of hearing. On 7-10-1978 Smt. Kailasho had also filed an application for maintenance under section 125, CrPC at Budaun before the III Special Judicial Magistrate which was contested by Virendra Kumar. The impugned order dated 6-3-1981 was, however, passed by the learned Magistrate granting Rs. 100/- per month as maintenance to Smt. Kailasho. A revision of Virendra Kumar against this order of the learned Magistrate was also rejected on 17-8-1981 by the II Additional Sessions Judge, Budaun. Virendra Kumar has now filed this petition challenging the aforesaid order of maintenance passed by the learned magistrate and confirmed by the II Additional Sessions Judge as illegal and without jurisdiction on the following grounds :- 1. Smt. Kailasho has no right to claim maintenance when her marriage with the applicant stands dissolved ; (2) Since Smt. Kailasho is residing separately by mutual consent, she is disentitled to claim maintenance ; (3) Smt. Kailasho made no allegation before the Magistrate that she was unable to maintain herself or the Magistrate has recorded any such finding. Clause (b) to sub section (1) of section 125 CrPC provides that a " wife " Includes a woman who has been divorced by, or has obtained a dovorce, from her husband and has not remarried. Smt. Kailasho has not remarried. Therefore, under section 125 (I) (b) she continues to be a " wife " for the purposes of that section despite the decree of divorce existing between them. Therefore, Virendra Kumar cannot challenge the order of the Magistrate merely on the ground that his marriage with Smt. Kailasho stands dissolved.
(3.) SUB-section (4) of section 125, CrPC lays down the circumstances in which no wife shall be entitled to receive maintenance from her husband. They are (1) if she is living in adultery ; or (2) if, without any sufficient reason, she refuses to live with her husband, or (3) if they are living separately by mutual consent. Smt. Kailasho is not living in adultery. The decree of dissolution also furnishes sufficient reason for her to live separately. The mere fact that the decree of dissolution is passed on a compromise does not mean that after the divorce she is living separately by mutual consent. Her separate living is the necessary consequence of the decree of divorce. The parties to a marriage can live separately by mutual consent only while the marriage is subsisting. Once a marriage is dissolved even by mutual consent under section 13-B, Hindu Marriage Act, separate living of the parties cannot be said to be by '* mutual consent ". In such a case parties to the marriage are living separately not by mutual consent but by the intervention of a divorce decree. In fact " living separately by mutual consent " in sub-section (4) of Section 125 connotes an agreement between the parties which provides for their living separately by mutual consent and further that they are actually living separately in terms of that agreement. Parties living separately after a divorce decree cannot; be said to be living separately in terms of an agreement to that effect even though the basis of the decree is mutual consent. In other words, to bring a case within Section 125 (4), it must be shown that the husband and wife are living apart by a definite contract made between them. If they are living apart; in pursuance of a decree of divorce, it cannot be said that they are living apart by mutual consent. Then sub-section (4) of section 125 does not apply to a divorcee. Such a question was raised in Prakash Chandra Verma v. Smt. Prakashwati, 1983 AWC 433= 1983 ACrR 220 in which, on a reference made to a Division Bench, it was further held that- "The other parts of section 125 (4) of the Code, namely, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent obviously do not apply to a divorced wife as a divorced wife has sufficient reason not to live with her husband as she is no longer his wife. If the wife has been divorced it is also obvious that the husband and wife are not living separately by mutual consent as the status of husband and wife has ceased to exist." Therefore, on this ground also Smt. Kailasho cannot be held to be disentitled to maintenance. It is not correct that Smt. Kailasho had made no allegations before the Magistrate that she was unable to maintain herself nor the Magistrate has recorded such a finding. The order of the learned Magistrate itself shows that Smt. Kailasho has made such an allegation in her petition filed before him and the Magistrate has given his finding on this point. The order of the learned Magistrate cannot, therefore, be challenged on this ground also.;