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Smt. Kalavati vs Ausan

High Court Of Judicature at Allahabad|25 January, 1980


ORDER Mahavir Singh, J.
1. This is a revision by the wife against the order passed by the learned IVth Additional Sessions Judge allowing the revision of the opposite party and setting aside the order of maintenance passed in her favour by the Judicial Magistrate.
2. The relevant facts are that in a petition filed by the applicant for main-1 tenance under Section 125, Cr. P.C. an agreement had taken place between the parties and the court had accordingly passed an order to opposite party to pay Rs. 30 per month as maintenance.
3. On 21-10-75 the applicant moved an application for execution for recovery of one year's maintenance. The opposite party filed objection that the compromise on the basis of which order of maintenance was passed was obtained by fraud and the applicant was leading a life of adultery. He also alleged that as they had agreed to live separately by mutual consent she was not entitled to get maintenance.
4. The learned Magistrate rejected the case of the opposite party about adultery. He also held that the agreement was made between the parties properly without any fraud. Hence he rejected the objection filed by the opposite party and ordered execution.
5. In revision before the Sessions Court the only point that was urged on behalf of the opposite party was that as the applicant was living separately from the opposite party by mutual consent, as admitted by her, she was not entitled to maintenance in view of Section 125(4) and (5), Cr. P.C. Against this order the woman has now come to this Court and contends that the view taken by the court below was wrong.
6. There is no doubt that Sub-section (4) provides that if a wife is living separately from the husband by mutual consent, she is not entitled to maintenance. Sub-section (5) further provides that on proof that the wife is living separately by mutual consent the Magistrate shall cancel the order. Thus Sub-section (4) refers to a stage prior to the order passed in maintenance proceedings whereas Sub-section (5) refers to the stage after the order has been passed. In the present case, however, none of these situations has arisen. It is true that the applicant in her statement had admitted that in the previous case there was mutual agreement between the parties by which they agreed to live separately and the opposite party agreed to pay Rs. 30 as maintenance. So the mutual agreement to live separately was anterior to the order passed in proceedings under Section 125, Cr. P.C. The opposite party submitted to that order and so it became final. He cannot challenge that order in execution proceedings.
7. Sub-section (5) of Section 125 also does not apply because admittedly there was no agreement to live separately after passing of the order under Section 125, Cr. P.C.
8. Moreover, the opposite party has made allegations about the character of the applicant. He alleged that she was living in adultery but that contention was rejected. So on that account also, apart from a mutual agreement, the applicant had sufficient cause to live separately. So in either view of the case the learned Sessions Judge was not right in setting aside the order passed by the magistrate for execution.
9. The revision, therefore, succeeds. The order passed by the Sessions Judge is set aside. The order passed by the Magistrate for execution is confirmed.
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Smt. Kalavati vs Ausan


High Court Of Judicature at Allahabad

25 January, 1980
  • M Singh