A wife is not living separately by mutual consent within the meaning of Section 488(4) of the Criminal Procedure Code if she is compelled to live separately due to the husband's second marriage.

A.N.Grover, J.

1. This case is the outcome of an unfortunate trouble between a husband and a wife, who both belong to respectable families. The husband, Dr. Mukand Lal, is the Deputy Medical superintendent of Ripon Hospital, Simla. He married Smt. Jyotishmati on 11-12-1932. It is common ground that the wife conceived eleven times but on each occasion she used to have an abortion in the fourth month of the pregnancy. On 14-12-1948, an agreement was entered into between the parties in the presence of the father of the wife and two of her other close relations Shri Jindra Lal, Bar-at-Law, and Shri Shankar Nath, Advocate of Simla. It was recited in the agreement that the parties had mutually agreed to separate and to live separately from each other as "it is best for the two parties to separate and to remain separate on account of the differences and other circumstances that have arisen between them." The husband was to pay maintenance allowance at the rate of Rs. 200/- per month. The other material condition worth noticing is that the wife was to be at liberty to undertake any work or avocation which did not have the effect of lowering the position or status of the husband. After the agreement the wife stayed in her husbands home for a little over a month and thereafter she started living separately. In April, 1950, the husband married another wife Dr. Rama Mehra who was working in a hospital at Simla. Two children have been born of this marriage, one is a son and the other, a daughter. The husband continued to pay the monthly allowance to the first wife up to 31-3-1955, but thereafter he discontinued the payment. On 1-7-1956 Smt. Jyotishmati filed an Application under Section 488 of the Criminal Procedure Code in the Court of the District Magistrate at Simla. It was stated inter alia in the application that in or about the year 1947 Dr. Mukand Lal started thinking of another marriage and by his inconsiderate treatment bordering on cruelty he compelled the applicant to seek separate residence. Thereupon the doctor agreed to pay Rs. 200/- per mensem to her with effect from 14-12-1948. It was further stated that the husband had neglected and refused to maintain the applicant and was demanding that she should resume residence in his house which she was not prepared to do in the circumstances then obtaining. Maintenance was claimed at the rate of Rs. 500/-per month. Dr. Mukand Lal denied allegations of maltreatment and put forward the main objection that as the parties were living separately by mutual consent no order could be made under Section 488, Criminal Procedure Code. The case was tried by Shri Waryam Singh, Magistrate, 1st Class, who went into the entire matter at great length. He ruled out the agreement, Exhibit D.D., as being inadmissible be-cause it was not properly stamped. He considered the evidence produced by the parties with regard to the circumstances under which the agreement was executed on 14-12-1948 and in pursuance of which the parties started living separately. He came to the conclusion that as Smt. Jyotishmati was found to be incapable of giving birth to a child and the husband wanted to re-marry he could not have been treating her properly as had been deposed to by a number of witnesses and this maltreatment compelled her to seek separate residence. This, according to him, could not be regarded as living separately by mutual consent. The Magistrate ordered the payment of Rs. 300/- per month as maintenance to be made to Smt. Jyotishmati.

2. Dr. Mukand Lal preferred a petition for revision under Section 435 of the Criminal Procedure Code to the Court of the Sessions Judge. While considering the circumstances in which the agreement. Exhibit D. D., was executed the learned Sessions Judge observed as follows:

"The agreement D.D. no doubt recites that the parties decided to live separately by mutual consent. It is, however, also stated therein that this decision was due to differences between them and other