A wife is not entitled to maintenance under Section 125(4) of the Criminal Procedure Code, 1973 if she is living separately from her husband by mutual consent, including cases where the separation is due to a divorce by mutual consent.

K.L. Shrivastava, J.

1. This revision petition by the husband is directed against the revisional order dated 11-9-1989 passed by the 1st Additional Sessions Judge, Barwani in Criminal Revision No. 79 of 1987 whereby setting aside the order dated 21-3-87 passed by the A.C.J.M. Barwani dismissing the non-applicant's application under Section 125 of the Criminal Procedure Code, 1973 (for short 'the Code'), the petitioner has been ordered to pay a monthly allowance in the sum of Rs. 400/- for the maintenance of the non-applicant.

2. Circumstances giving rise to the revision petition are these. The non-applicant on 10-10-85 filed the application under Section 125 of the Code in the Court of the Addl. Chief Judicial Magistrate, Barwani alleging that the petitioner has been cruel to her and had driven her out of the marital home in April 1985 and has refused to maintain her. The application was opposed.

3. At the conclusion of the evidence, the learned Magistrate dismissed the aforesaid application holding that the non-applicant has failed to prove the cruelty alleged.

4. The non-applicant successfully challenged the aforesaid order in revision which has been disposed of by the impugned order.

5. It may be pointed out that during the pendency of the application under Section 125 of the Code there has been divorce between the parties by mutual consent. The learned Magistrate did not take into consideration this fact holding t lat there was no pleading on the point.

6. The contention of the learned counsel for the petitioner is that the finding recorded by the learned Magistrate as to cruelty was sustainable on the material on record and the learned Additional Sessions Judge erred in interfering with it in exercise of his revisional jurisdiction. It was further contended that as the parties were living separately by mutual consent, the non-applicant was not entitled to receive any allowance from the petitioner in view of the provision embodied in Sub-section (4) of Section 125 of the Code.

7. The contention of the learned counsel for the non-applicant is that the finding recorded by the learned Magistrate was without any regard to the object behind the provision embodied in Section 125 of the Code and occasioned mis-carriage of justice and was rightly interfered with. In support of this submission he has placed reliance on the decision in Giri Shchandra's case (1987 (II) MPWN 214).

8. Relying on the decision in Raghunath v. Suman, 1988 MANISA 57 (MP) and on the decision in Rayajunnisa's case 1981 (1) MPWN 23 in which reliance has been placed on the decision in Bai Tahira's case AIR 1979 SC 362 the learned counsel for the non-applicant urged that the expression 'living separately by mutual consent' as contemplated under Sub-section (4) of Section 125 of the Code does not take within itself the case of husband and wife living separately as a result of decree of divorce based on mutual consent.

9. Relying on the decision in Niamat Khan's case AIR 1951 Nagpur 206 the learned counsel for the non-applicant urges that the impugned order is not amenable to interference in exercise of the revisional jurisdiction of this Court.

10. The point for consideration is whether the revision petition deserved to be allowed.

11. A perusal of the evidence of non-applicant Kiran (AW 1) shows that the petitioner used to abuse her and beat her and, therefore, she left his home. She is corroborated by her uncle Balmukund (AW 2). The learned Magistrate did not consider this evidence in its proper perspective and, therefore, he fell into an error and passed the order which occasioned miscarriage of justice. I hold that it was rightly interfered with in revision.

12. At this stage reference may be made to Sub-section (4) of Section 125 of the Code, It reads thus :--

"No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they a