Amarendra Nath Bagui vs Gouri Rani Bagui : 1990 Cri.L.J. 2415 : 1990 (2) Cal. H.N. 84 : 1990 CalCril R 295 : 1989 (94) CalWN 1120 : 1991 (1) DMC 202 : 1991 (2) HLR 631 : 1991 (2) AICLR 449 : 1991 (1) RCR (Cri) 73 : 1991 CivCC 557 : 1990 LRC Online 02 (Cal)
Section 125(4)-Claim of maintenance-Entitlement-Where the separate living proceeds from common desire of husband and wife certainly by mutual consent-Parties were living separately on mutual consent-Wife not entitled to claim maintenance from husband.
Held : . We are concerned with the last contingency in this case. Admittedly the parties are living separately by mutual consent. The O.P. No. 1 is not, therefore, entitled to maintenance under Section 125, Criminal Procedure Code. She may be entitled to maintenance under the Hindu Marriage Act or in an action for enforcement of the alleged agreement for maintenance but Sub-section (4) of Section 125 which governs the whole of Section 125 including Sub-section (I) is a clear bar to her claim for maintenance. In Nathuram v. Smt. Atar Kurwar, it has been held that where the separate living proceeds from the common desire of the husband and the wife live separately whatever the reason for the desire may be, it is certainly by mutual consent. Where, therefore, since the passing of the consent decree for judicial separation, the parties have been living separately by mutual consent the wife is not entitled to receive any maintenance under Section 488 Criminal Procedure Code (present Section 125) she may pursue such remedies as may be available under Hindu Marriage Act. In this case separate living proceeded from the common desire of the husband and the wife to live separately and was in face an outcome of a free agreement between the parties. The parties are living separately on mutual consent and O.P. No. 1 is not entitled to maintenance under Section 125, Criminal Procedure Code.