Living separately by mutual consent requires a deliberate and express agreement between the parties, and separate living due to circumstances or force does not qualify as mutual consent. Proceedings under Section 488 Cr. P.C. are not criminal in nature and do not result in acquittal or conviction.

This revision petition is directed against the order dated 30-1-64 passed by S.D.M. I.W. by which he ordered the petitioner to pay Rs. 20/- to opposite party No. 1 and Rs. 10/- per month to his minor, daughter as a maintenance allowance.

2. The material facts are not in dispute and they may be briefly stated as follows :

On 14-12-62, the opposite party No. 1 on behalf of herself and 3 minor children opposite party No. 2 to 4 presented an application to the S.D.M., I.W. for proceeding under Section 488 Cr. P.C. against her husband the petitioner with the contention that she was the legally married wife of the petitioner and after their marriage they lived as husband and wife for some years in the house of the petitioner and during that period she gave birth to these 3 children. While their marriage was in subsistence the petitioner contracted a second marriage and thereafter he started illtreating her without any reason. As she could not tolerate the cruelty and ill treatment of her husband so she left his house with her youngest daughter and began to live with her parents. After sometime the other two respondents also came and joined them. As she had no means to maintain herself and her children, so she approached the petitioner to, maintain them, but he refused to maintain them. The Court, therefore, should order him to pay Rs. 30/- per month to her and Rs. 20/- for each of her children.

The petitioner opposed this petition on the ground that owing to a difference between them they had been living separately on mutual consent under a written agreement in which she gave up her right to maintenance for herself and for the daughter whom she took to her paternal house at the time of separation. He further pleaded that out of grace he gave them money and two pots of paddy per month for the maintenance of his wife and daughter. It was also pleaded that he married the second wife for looking after the two sons whom she left with him. Those two sons, however, left his house subsequently to live with her at her instigation. It was also pleaded that he has no means to maintain her and her children, as he is already supporting 4 children by his second wife who are living with him.

3. The learned counsel for the petitioner contended that Shrimati Sakhi Devi, started a case being Criminal Case No. 12 of 1962 under Section 488 Cr. P.C. for the maintenance. That case was dismissed on 12-12-62 for default of appearance, therefore she is precluded from making a second application under Section 488 Cr. P.C. I am not at all convinced by this argument. There is no provision in the Code which, bars a second application under Section 488 Cr. P.C. But when an application under this section has been heard and adjudicated upon, it is against the general principle of the rule of res judicata that a subsequent application on the same facts should be entertained. Subject to

this principle, a prior application is no bar to a subsequent application if that application was dismissed for default and there was no adjudication on the merits. On the perusal of the records, I find that the previous case was dismissed in default and there was no adjudication on the merits, therefore there is no bar against this application.

4. The learned counsel for the petitioner next contended that the procedure laid down for summons cases is applicable to the hearing of applications under Section 488 Cr. P.C. Chapter XIX Cr. P.C., governs such an application and the result non-appearance of the complainant on the date i.e. 12th December, 1962, was the acquittal of the applicant. Section 403 Criminal P.C. bars a second application on the same facts. I do not accept the contention of the applicant.

5. There is no acquittal in proceedings under Section 488 of the Code. There should be a trial of an offence before there can be an acquittal or a conviction. Offence is defined in. S. 4(o), Criminal P.C. as follows :

" Offence means any act or omission made punishable by any law f