ORDER :- This is an application in revision against the order of the Sessions Judge of Hardoi dismissing an application in revision against an order passed by a Magistrate, first class Hardoi refusing to order payment of maintenance on an application made by one Smt. Chameli against her husband under S. 438, Criminal P.C.

2. Smt. Chameli who claims to be the wedded wife of the opposite party made an application to a Magistrate, first class Hardoi, asking for an order against the opposite party for maintenance as the opposite party had neglected to maintain her. The applicant was married to the opposite party more than 25 years ago, but shortly after the marriage the opposite party refused to keep the applicant in his house and agreed to pay maintenance to her. An agreement dated 19-3-1928, was executed by the applicant in favour of the opposite party relinquishing her rights against the opposite party who agreed in return to pay maintenance at the rate of Rs. 150/- per annum. This amount was paid for some time. A suit was, however, brought in 1938 for arrears of maintenance on the basis of this deed of agreement for the period from 1-3-1937, to 31-8-1938. This suit ended in a compromise decree being passed on 6-2-1939. Under the terms of the decree the opposite party agreed to pay the arrears of the maintenance and future maintenance was reduced to Rs. 115/- per annum.

Once again the applicant had to bring a suit for arrears of maintenance in 1941 when she claimed maintenance for the period from October 1938 to August 1941. In this suit also a compromise decree was passed and the opposite party agreed to pay arrears of maintenance and future maintenance at the rate of Rs. 9/9 per month. The maintenance was paid to the applicant as agreed upon till July 1951. The applicant then made an application under S. 488, Criminal P.C. on 5-11-1951, on the allegations that the opposite party had neglected to maintain her and that in these hard days it was not possible for her to eke out her existence.

3. The application made by the applicant was resisted by the opposite party. It was contended on his behalf that the parties had been living separately and that the applicant was not entitled to relief under S. 488 inasmuch as this Section was inapplicable as the parties had been living separately by mutual consent. The Magistrate came to the conclusion that although the applicant needed assistance his jurisdiction to entertain the application under S. 488, Criminal P.C. was barred as the parties had been living separately by mutual consent. The applicant then went in revision to the Sessions Judge who agreed with the view taken by the Magistrate and dismissed the application for revision. The applicant has now come up in revision to this Court.

4. It is not disputed that the applicant is the wire of the opposite party and that they have not been living together since 1928. The execution of the agreement dated 19-3-1928 is admitted although it is alleged by the applicant that it was brought about without her consent and under indifferent circumstances. The subsequent litigation between the applicant and the opposite party was borne out by copies of decrees passed in those suits and they are Exs. B and C.

5. The first point which arises for determination in this application for revision is whether it is open to the applicant to take advantage of the provisions of S. 488, Criminal P.C. after an agreement had been arrived at between the parties under which maintenance was granted to the applicant, and they were living separately. It has been argued on behalf of the applicant that the agreement to pay maintenance even though arrived, at by consent of parties, does not bar the jurisdiction of a criminal Court to entertain an application under S. 488, Criminal P.C. and in support of this contention a number of rulings have been cited. Before all these authorities cited on behalf of the applicant are considered in detail, the objection taken by the oppo

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