JUDGMENT Virendra Saran, J.
1. The present writ petition has been filed by Ratan Lal praying that the order dated 28.3.1989 of VII Addl. Munsif Magistrate, Mathura as confirmed by the order dated 4.1.1990 of Sri K.N. Singh, II Addl. Sessions Judge, Mathura in Criminal Revision No. 81 of 1989 be quashed.
2. Respondent No. 3 Smt. Padnia filed an application Under Section 125, Cr. P.C. claiming Rs. 500/- per month as maintainance from her husband Ratan Lal, the petitioner. The case set up by Smt. Padma is that she was married to the petitioner according to Hindu rites above 23 years prior to the filing of the application. Smt. Padma alleges that at the time of her marriage she was the only child of her parents and the petitioner and his family members were expecting to get property of her parents after the death of her parents but their fond hopes wrecked on a fortuity which was no other than the birth of a male child to Smt. Padma's parents and hence at the time of 'Gauna' ceremony they started making demands of dowry. Smt. Padma has further pleaded that Ratan Lal was having an affair with Smt. Mani Devi whom he later on married and in 1971 the petitioner turned Smt. Padma out of the conjugal home after giving a beating to her. She started living with her father who provided her shelter and food but after her father's death Smt. Padma was left with no means to keep her body and soul together and hence she approached the Court Under Section 125, Cr. P.C. for maintenance.
3. The petitioner filed his written statement in which he pleaded that there was no marriage between him and Smt. Padma. He further pleaded that Smt. Padnia was a woman of easy virtue and was having affairs with others. The learned Magistrate has taken pains to scrutinise the evidence of the parties minutely and has held that the petitioner had failed to prove the allegations of unchastity against Smt. Padma. He further held that the petitioner was married to Smt. Padma who was unable to maintain herself. The learned Magistrate also found that the petitioner has entered into a second marriage with Mani Devi. The lower revisional Court upheld the findings of the learned Magistrate and has dismissed the revision.
4. After going through the judgment of the Courts below and hearing learned Counsel on the either side at length, I am of the opinion that the judgments do not suffer from any infirmity and I am not inclined to reassess evidence in the exercise of jurisdiction under Article 226 of the Constitution in writ petition.
5. Learned Counsel for the petitioner has placed reliance on the case of Udit Narain v. Smt. Paudharia, 1980 Allahabad Criminal Rulings 86 and has submitted that since Smt. Padma has filed her application Under Section 125 Cr. P.C. with delay it should be presumed that she has acquiesced in living separately from her husband and hence in the eye of law the husband and the wife are living separately by mutual consent. I am unable to accept the submission of the learned Counsel for the petitioner. In the case of Udit Narain (supra) Hon'ble Deoki Nandan, J. has observed that as the wife has acquiesced to the second marriage of the husband on the assurance that she would get maintenance there was no sufficient ground for her to live separately and further she was being maintained by the father of the husband so long as he was alive. The Court observed :--
"These facts are in my opinion, sufficient to disentitle Smt. Paudharia to any order of maintenance under Section 125......"
6. There is nothing in Udit Narairn's case (supra) that acquiescence of a wife to a second marriage amounts to living separately by mutual consent. The point which really weighed in Udit Narain's case for the rejection of the wife's claim of maintenance is not clear and in my opinion in the peculiar facts and circumstances of the case the Court rejected the claim of the wife. At the same time no law has been laid down. It would be appropriate to refer Section 125(4) Cr. P.C. which states :--
"125 (4). 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 refuses to live with her husband, or if they are living separately by mutual consent."
7. The words "living separately by mutual consent" signify a special meaning. A wife who is compelled by circumstances to live separately from her husband does not do so by mutual consent. In the case of Bai Tahira v. Ali Hussain Fissalli, AIR 1979 SC 362, the Supreme Court interpreted the words "living separately by mutual consent". The argument advanced on behalf of the husband in Bai Tahira's case was that the wife had forfetied her claim because of divorce and the consent decree. Krishna Iyer, J. rejected the argument and observed:--
"We see 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 born".
8. In my opinion the words mutual consent in Section 125(4), Cr. P.C. imply desire of both the parties to live separately. The words mutual consent mean a common and joint consent shared by two or more persons. It involves reciprocability which is quite different from acquie-sceance. My view is fortified by the observations of Randhir Singh, J. in the case of Chameli v. Gajraj Bahadur, AIR 1954 All. 33 :--
"The words "mutual consent" mentioned in Section 488 (4), Criminal P.C. would apply to separate living, if such separate living was the result of a desire of both parties and mere agreement to pay maintenance or to live separate would not bar an application under Section 488, Criminal P.C."
In an earlier Allahabad case, Ram Saran Dass v. Mt. Ram Piari, AIR 1937 Allahabad 115 Allsop, J. expressed the view that mutual consent means a consent on the part of the husband and wife to live apart on matter what the circumstances may be. Where wife refuses to live with the husband on some specific ground it cannot be held that the husband and wife are living apart by mutual consent.
9. In my opinion, living separately of mutual consent means that there is a definite agreement between husband and wife voluntarily and freely made. In the case of Bhagwan Singh v. Mt. Gurcharan Kaur, AIR 1939 Lah. 209 there were proceedings Under Section 488 Cr. P.C. of 1898. (Corresponding to Section 125 Cr. P.C.). After some evidence had been recorded parties entered into a compromise and the Magistrate made an order embodying the terms of the compromise which provided that the husband would pay certain amount as maintenance to his wife on the condition that she lived in the house which the husband allotted to her separate from his second wife. In case of mal-treatrcent or cruelty she was entitled to live separate from her husband according to her choice and receive the amount fixed as maintenance. The Lahore High Court held that the compromise did not amount to living separately by mutual consent. Similarly in the case of Amar Nath v. Prem Nath, AIR 1968 Delhi 217, H.R. Khanna, J. observed :--
"The words "mutual consent" necessarily postulate that the desire to live apart should emanate from both parties and that none of them should be forced to separate living and ultimately submit to it only as a result of circumstances brought about by one of the parties. The test is whether the agreement to live separately was the outcome of the desire of both the parties, independently reached by each of them or whether one of them was forced to submit by circumstances or the attitude of the other party to agree to separate living."
10. The last submission of the learned Counsel for the petitioner is that the application Under Section 125 Cr. P.C. was belated and hence it ought to be rejected. I am unable to accept the contention of the learned Counsel for the petitioner that a mere ground of delay the application Under Section 125 Cr. P.C. ought to be rejected. Women folk in our country are very modest and shy and a vast majority of them do not move out of their domesticity. They do not like to go in for litigation which is tiring, time consuming and expensive. A deserted wife may be able to sustain herself for sometime but when she reaches a breaking point and is no more able to bear the pangs of hunger and pennilessness she is entitled to approach the Court. Her right of claiming maintenance is a continuing one and the legislature has taken care by not providing any period of limitation for making an application Under Section 125 Cr. P.C.
11. The writ petition is devoid of merits and is hereby dismissed.