( 1 ) THIS revision is by the husband questioning the legality and correctness of the order of' the District and Sessions Judge, Mandya dated August 7, 1993 in Cr. R. P. No. 66 (A)/91 arising out of the order dated April 1, 1991 in C. Mis, No. 75/88 on the file of the learned Magistrate, Srirangapatna granting maintenance of Rs. 300/- per month to each one of three respondents with further direction that the amount awarded in favour of 1st respondent to be paid from April 1, 1991. Learned Magistrate had refused maintenance to the 1st respondent and had ordered maintenance at the rate of Rs. 250/- each for respondents 2 and 3.

( 2 ) I would refer to the parties hereinafter as they are arrayed in the original petition before the learned Magistrate.

( 3 ) PETITIONERS made an application under Sec. 125 of Cr. P. C. against the respondent praying for atleast a sum of Rs. 1500/- per month for their maintenance. It is undisputed that 1st petitioner G. S. Vasanthalakshmi and the respondent Malayaiah belonging to different communities married on April 12, 1981 and their marriage came to be registered in the office of the Registrar of Marriages at Mysore on April 25, 1981. They continued to live together for about 6 years after the marriage and during which time they had two daughters and they are petitioners 2 and 3. It is only thereafter the dispute arose since the husband suspected the fidelity of the 1st petitioner. It is also alleged that since then the husband having sufficient means neglected to maintain his wife and two daughters. Respondent resisted the application contending inter alia that on March 8, 1988 a mutual agreement was entered into between the husband and wife styled as "agreement for divorce by consent" and since then they have agreed to live separately by mutual consent and therefore wife is not entitled for maintenance.

( 4 ) PETITIONER examined herself, produced documents Exs. P-1 to 18 in support of their case. Respondent examined himself, another witness by name Narasimharaju, produced documents Exs. R-1 to 5. Learned Magistrate after considering both oral and documentary evidence and also alter hearing the counsel for the parties, by order dated April 1, 1991 rejected the claim of the wife, granted Rs. 250/- each for petitioners 2 and 3.

( 5 ) AGGRIEVED by the order, wife questioned it before the District and Sessions Judge. Mandya in Cr. R. P. 66 (A)/91. The learned Sessions Judge by order dated August 7, 1993 allowed the revision in part, granted maintenance even to the wife, enhanced the maintenance granted to the daughters and directed that a sum of Rs. 300/- each shall be paid and for the wife it shall be paid from April 1, 1991. Correctness of this order is under challenge.

( 6 ) SUB-SECTION (4) of Sec. 125 of Cr. P. C. disentitles a wife from claiming maintenance under Sec. 125 Cr. P. C. in cases where the husband and wife live separately by mutual consent. Sub-Sec. (5) further provides for cancellation of any such order under Sec. 125 Cr. P. C. subsequently, on proof that husband and wife are living separately by mutual consent. It is thus clear that a wife living separately from her husband by consent cannot enforce her right and ask for maintenance under S. 125 Cr. P. C. Ex. R.-4 is the agreement alleged to have been executed by the wife expressing her willingness to live separately from the husband. RW-1 husband and RW-2 Narasimharaju, Senior Assistant in Maharaja's College, Mysore speak to the execution of the document Ex. R-4. 1st petitioner-wife contends that it is created by her husband to avoid payment of maintenance. However, it is elicited in cross-examination of the petitioner that she had no ill-will or dispute with RW-2 Narasimharaju, that her mother has signed the agreement Ex. R-4 as a witness and both of them signed it at Vontikoppalu on March 28, 1988. Mother of the wife is literate and a retired school teacher. No acceptable or satisfactory evidence is placed on record to substantiat

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