JUDGMENT - V.A. MOHTA, J.:---Applicant Shravan Ubhale married non-applicant No. 1 Sau. Durga on 2nd May, 1982. Very soon misunderstanding developed between the two and relations got strained. There was exchanged of correspondence. All attempts at reconciliation failed. On 13-6-1983 there was a divorce between the two by mutual consent. Two documents divorce deed (Ex. 15) and Consent Deed (Ex. 10) were executed by both. Thereafter both started residing separately. Sau. Durga was pregnant at the time of divorce. She delivered a male child Kailash (non-applicant No. 2) after a month or two. When Kailash attained the age of about 11/2 years, Sau. Durga filed an application for maintenance under section 125 of the Code of Criminal Procedure for herself as well as Kailash. Shravan resisted the application inter alia on the ground that Sau. Durga had specifically relinquished her right to claim past and future maintenance.

2. The learned Judicial Magistrate repelling the defence, granted maintenance to Durga at the rate of Rs. 100/- and to Kailash at the rate of Rs. 50/- per month. The said order was maintained by the learned Sessions Judge. Inherent powers of this Court are invoked under section 482 of the Code of Criminal Procedure on the ground that the proceedings under section 125 Cri.P.C. were an abuse of process of Court and ends of justice demand that they should be quashed. Having perused Ex. 15, and Exh. 10 and other undisputed positions on record, I find considerable substance in the present criminal application filed by Shravan as far as his liability to pay maintenance allowance to Durga is concerned. Taking divorce by mutual consent in this manner is a long standing custom prevailing in certain communities in this region. All terms have to be examined as a whole and as a package deal and no term can be examined in isolation. Indeed many times one term is a consideration for the other. In this light the following agreed terms will have to be examined.

(i) The divorce was being executed because of the disagreement between the parties. (ii) Both were free to remarry; (iii) Durga was carrying in her womb a child of about 8 months. His custody was to be given to Shravan as soon as feeding period was over; (iv) Shravan had to recover nothing from Sau. Durga; (v) Durga would not claim any maintenance either for the past or for the future.

3. The learned Magistrate has not even referred to the consent-deed (Ex. 10) and held that even a divorced wife is entitled to maintenance until her remarriage. The learned Sessions Judge referring to the consent deed (Ex. 10) observed thus :

“It does not reveal that she has given up her right for future maintenance. No doubt that she has written that she will not demand any maintenance, but legal right cannot be given up in this manner”.

4. That a divorcee is entitled to claim maintenance under section 125 Cri.P.C. admits of no debate. The term 'wife' used in section 125(1)(a) includes divorcee who is not remarried, under Explanation (b) to sub-section (1) of section 125. Therefore, the fact of mere divorce without anything more is no defence to the claim for maintenance allowance by a wife. Crucial question is, is she entitled to maintenance even if she chooses to live separately by mutual consent and voluntarily surrenders her right to maintenance. Combined reading of the scheme of section 125 and section 127 Cri.P.C. in general and sub section (4) of section 125 and Clause (c) of sub-section (3) of section 127 in particular, would clearly provide an answer against maintainability of a claim for maintenance allowances in such circumstances. Sub-section (4) of section 125 Cri.P.C. clearly mentions that no wife shall be entitled to receive allowance from her husband inter alia, if “they are living separately by mutual consent”. Clause (c) of sub-section (3) of section 127 mentions that order of maintenance will have to be cancelled in case “the woman

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