A wife's consent to her husband's second marriage does not bar her from claiming maintenance under Section 125 of the CrPC if she is unable to maintain herself and is justified in living separately due to the husband's cruelty.

( 1 ) THIS is a revision petition by the wife against the order dated 21-3-1984, passed by the Additional Sessions Judge, Balaghat, in Criminal Revision No. 57 of 1983, by which the order dated 1-9-1983, passed by the Judicial Magistrate First Class, Waraseoni, in Miscellaneous Criminal Case No. 38 of 1981, granting maintenance under Section 125 of the Code of Criminal Procedure has been reversed.

( 2 ) ADMITTEDLY, the applicant is the legally wedded wife of the non-applicant. On 15-5-1981, the non-applicant contracted second marriage and the applicant is living separately with her parents.

( 3 ) THE case of the applicant is that after the second marriage of the non-applicant, he started treating the applicant with cruelty. A son was also born to the non-applicant out of the wedlock of the second marriage. The cruelty became unbearable. Her father had to get her custody through a search warrant from Court. As such, she was compelled to leave the house of the non-applicant and live with her parents. According to her, on 8-4-1981, signatures on some blank papers were taken from her in the Court premises forcibly. She was informed that some agricultural land is being given to her. But, subsequently it was found that it was a consent deed permitting the non-applicant to have a second marriage. According to her, she never consented to it. Since she was not being maintained by the non-applicant, she filed an application before the trial Magistrate under Section 125, Cr. P. C. for grant of maintenance of Rs. 150/- per month, submitting that the non-applicant has 10 acres of agricultural land and other sources of income.

( 4 ) THE non-applicant, in reply, had submitted that the applicant was a consenting party to the second marriage. After her consent only the second marriage was performed by the non-applicant. The non-applicant further submitted that the applicant is not entitled to live separately and claim the amount of maintenance. Cruel treatment to the applicant was also denied.

( 5 ) THE trial Magistrate, on thrashing the evidence, found that the document Ex. N. A. 1 (the alleged consent deed) was written by the applicant with her consent. However, the trial Magistrate found that since the non-applicant had contracted second marriage and has one issue from that marriage, the applicant was justified in living separately. The trial Magistrate assessed the income of the non-applicant at Rs. 1000/- per month and granted maintenance to the applicant at the rate of Rs. 75/- per month only.

( 6 ) AGAINST the said order of the Trial Magistrate, the non-applicant filed a criminal revision before the lower revisional Court, which has been allowed on the ground that since the applicant was a consenting party for second marriage, she is not entitled to claim maintenance.

( 7 ) LEARNED counsel for the applicant submitted that the lower revisional Court has ignored the explanation to the second proviso to sub-section (3) of Section 125, Cr. P. C. , which says that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him. He has submitted that the living of the applicant separately with her parents is under the compelling circumstances of cruelty to the applicant by the non-applicant after his second marriage and the order of the lower revisional Court deserves to be set aside.

( 8 ) LEARNED counsel for the non-applicant, on the other hand, has submitted that the point of consent is a point of fact. He has further pointed out that since the applicant has not pleaded and proved unability to maintain herself, her application is liable to be dismissed on that ground alone.

( 9 ) ON hearing learned counsel for both the parties and on going through the records of the Courts below, I am of the opinion that this revision deserves to be allowed. Though the wife-applicant has not mentioned the wordings "unable to maintain herself" it