J. M. SHETH, J. ( 1 ) THIS is a revision petition filed by the husband the opponent in Miscellaneous Application No. 9 of 1969 against his wife the petitioner in that case against the order passed by the learned City Magistrate 5 Court Ahmedabad. directing him to pay Rs. 100/per month with effect from 29-1-1969 the date of application towards her maintenance and to pay Rs. 100/by way of costs to the wife. It was a proceeding taken out by the wife against her husband for maintenance under sec. 488 of the Criminal Procedure Code on the ground that she was the legally wedded wife and her husband had neglected and/or refused to maintain her. ( 2 ) THE marriage between the parties took place sometime in the year 1942 A. D. as mentioned in the agreement Ex. 4 dated 16-1-1965. During that wed-lock one son named Sukhdev was born who has now become major. As the husband was illtreating the wife and further more he had kept a mistress named Pushpa Lilaram she had started residing separately under an agreement whereby the husband had agreed to pay Rs. 100/per month to her by way of maintenance. That agreement was executed on a stamp paper and the husband had agreed to send Rs. 100/every month by money-order. He did it for some time and she accordingly stayed separately. From the month of August 1968 he did not send that amount and hence a notice Ex. 5 was given by her to him through her Advocate for demanding the arrears. In reply to it he gave an evasive answer and stated that as she was staying separately from him since the year 1964 A. D. she had ceased to be his wife. There had been no divorce and the marriage was subsisting. As this husband had kept a mistress named Pushpa he does not want to keep her and does not want to maintain her. He has good property and has got a factory car etc. and earns Rs. 3 0 per month. Rs. 250/per month would be required for maintaining herself in these days of high cost of living and to live a life which she had lived uptil now. She therefore claims maintenance on that basis. ( 3 ) THE significant fact to be borne in mind from the reply Ex. and earns Rs. 3 0 per month. Rs. 250/per month would be required for maintaining herself in these days of high cost of living and to live a life which she had lived uptil now. She therefore claims maintenance on that basis. ( 3 ) THE significant fact to be borne in mind from the reply Ex. 2 given to this application by the present petitioner (husband) is that he has not taken up a contention that such an application cannot be entertained tin the Criminal Court in view of the provisions of sub-sec. (4) of sec. 488 of the Criminal Procedure Code (which will be hereinafter referred to as the Code) as the parties had agreed to live separately by mutual consent and they were so living. on the contrary he asserted that there was no free consent given by him to pay any such maintenance amount of Rs. 100/per month. His wife was in illicit connection with one Natwarlal serving in the Municipal Corporation and her conduct was very doubtful. In those circumstances under coercion and pressure his wifes relations had taken his signature on one paper. He had raised a protest in that behalf. He had not refused to maintain his wife and had not neglected to maintain her. He had not illtreated her He had stopped his confectionary business wherein Bai Pushpa was his partnerhe had no other relations with her. He is without any business and is unemployed. The application should therefore be rejected. ( 4 ) WIFE Labhkaur was examined at Ex. 3. Husband Ajitsingh was examined at Ex. 8 on his behalf and he examined one Devendrabhai at Ex. 11. The wife produced an agreement Ex. 4 dated 16th January 1965 and a notice given by her at Ex. 5. The husband produced a partnership-deed entered into between him and Bai Pushpa and the alleged affidavit of Sukhdev referred to as the son of the parties. ( 5 ) THE learned Magistrate on consideration of the evidence came to the conclusion that the allegations made by the husband about the wifes illicit connection with one Natvarlal were false. He found that this husband had kept one Bai Pushpa as a mistress. Due to it circumstances were created by him which compelled the wife to live separate and the wife was given maintenance for sometime as per agreement Ex. 4. He found that this husband had kept one Bai Pushpa as a mistress. Due to it circumstances were created by him which compelled the wife to live separate and the wife was given maintenance for sometime as per agreement Ex. 4. He found that this husband even though he had entered into such an agreement came forward with a false story that he had not executed it voluntarily. That contention was ultimately given up at thee time of arguments. Even after the execution of such an agreement he after sometime stopped payment of the maintenance amount. He declined to keep her with him on the ground that he had given over the possession of the rented property. It was merely a ruse. The wife had given a counter offer to solve that accommodation problem as she had herself kept rented premises wherein she was prepared to stay with him but the husband declined to stay there He therefore found that this husband was not prepared to stay with his wife and that was presumably with a view to his staying with his concubine. It was the version of the husband that Bai Pushpa was the sister of his friend and that is why he had come into contact with her. The learned Magistrate on consideration of the evidence found that this husband no doubt had stopped his confectionary business but he must have other income. The wifes version was that he was doing transport business and was also doing the work as a building contractor. His version that he had no means was false. The fact that he was wearing a costly terelyne suit and was having a fine wrist watch on his hand as admitted by him in his evidence was indicative of the position that he has sufficient means. To defeat the claim of the wife he has come forward with this story. He therefore passed the impugned order. ( 6 ) THE only argument advanced by Mr. M. C. Shah appearing for the petitioner was that the Criminal Court had no jurisdiction to grant maintenance amount in view of the provisions of sub-sec. (4) of sec. 488 of the Code. He urged that the moment such an agreement like the agreement Ex. 4 was entered into as a result of which parties lived separate and the husband agreed to pay maintenance amount sub-sec. (4) sec. (4) of sec. 488 of the Code. He urged that the moment such an agreement like the agreement Ex. 4 was entered into as a result of which parties lived separate and the husband agreed to pay maintenance amount sub-sec. (4) sec. 488 of the Code would be attracted and that would bar the jurisdiction of the criminal Court in entertaining such an application. He urged that the circumstances anterior to such an agreement which may be responsible for the execution of such an agreement were irrelevant and immaterial. The reason why this wife agreed to live separate and take maintenance at the rate of Rs. 100/per month as per that agreement was immaterial and irrelevant. The criminal Court cannot go behind that agreement and try to find out whether there were any circumstances compelling the wife to agree to live separate. What is the basis of the application filed under sec. 488 of the Code submitted Mr. Shah is immaterial. The moment such an agreement is established the Court cannot inquire into the circumstances that led to such an agreement. The Court is obliged to stay its hands. on account of a breach of such an agreement one has to approach the Civil Court for the enforcement of it. It was urged by him that a really this right of maintenance given to the wife was a Civil right. It culminated into an agreement and the moment that was so the remedy of the party agreeing was to enforce that obligation in a Civil Court and cannot come to a criminal Court under sec. 488 (1) of the Code and get its wrong redressed by resorting to such a speedy and summary remedy. In short his argument was that if the party to such an agreement commits a breach it is not a violation of any marital obligation so that the wrong could be redressed by resorting to sec. 488 (1) of the Code; it is a breach of a contractual obligation. The remedy to enforce it would therefore be to approach a Civil Court. If such a suit is filed to enforce such an obligation the question of neglect or refusal to entertain would be undoubtedly irrelevant and immaterial. ( 7 ) SHAH further urged that sub-sec. (4) of sec. 488 of the Code has no reference to refusal or neglect. The remedy to enforce it would therefore be to approach a Civil Court. If such a suit is filed to enforce such an obligation the question of neglect or refusal to entertain would be undoubtedly irrelevant and immaterial. ( 7 ) SHAH further urged that sub-sec. (4) of sec. 488 of the Code has no reference to refusal or neglect. It does not contemplate a separate agreement for maintenance. It contemplates only separate stay by mutual consent. The moment there is such an agreement to live separate the jurisdiction of the Criminal Court would be barred. One may agree to such a course for variety of reasons. The Criminal Court cannot inquire into those reasons. The monent it is proved that the parties are ad idem the Criminal Courts jurisdiction will be ousted. ( 8 ) IN reply to these arguments Mr. Chhaya learned Assistant Government Pleader appearing for the State and Mr. H. L. Patel appearing for the wife contended that the important words to be interpreted are:- if they are living separately by mutual consent. They find place in subsec. (4) of sec. 488 of the Code. It is only if the parties without any compulsion of events or circumstances. out of their own free-will and volition decide to live separately by mutual consent independently and each intends to live as he or she likes by such separate residence it could be said that they are living separately by mutual consent. That is what the legislature really intended to convey by the use of such a phraseology. If the wife is obliged to stay separately and agreed to live separate as the husband has kept a concubine and so it is not possible to stay with him and the husband has agreed to pay her maintenance it can not be said that she has been living separately by mutual consent. The circumstances prevailing obliged her to live separate. Under law she was entitled to live separately from the husband when the husband began to keep a concubine. If such a husband after entering into such an agreement for sometime gives the maintenance amount agreed and thereafter stops it the wifes right to claim maintenance on proof of the necessary facts referred to in sub-sec. (1) of sec. 488 of the Code cannot be taken away. If such a husband after entering into such an agreement for sometime gives the maintenance amount agreed and thereafter stops it the wifes right to claim maintenance on proof of the necessary facts referred to in sub-sec. (1) of sec. 488 of the Code cannot be taken away. It was urged that this was not a case where the wife had come to a criminal Court to enforce the obligation incurred by the husband on account of the agreement Ex. 4. She had come to the criminal Court for having this speedier remedy on the ground that she was the legally wedded wife of her husband and the husband had refused or neglected to maintain her. It is only on the proof of those facts that she would be entitled to claim maintenance. ( 9 ) FOR appreciating these rival contentions urged at the Bar I would first like to refer to the two material sub-secs. (1) and (4) of sec. 488 of the Code. Sub-sec. (1) reads:- (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrates a Presidency Magistrate a Sub-divisional Magistrate or a Magistrate of the first class may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs. Sub-sec. (4) reads:- (4) 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 refused to live with her husband or if they are living separately by mutual consent. In my opinion it will be more precise to say that sub-sec. (4) of sec. 488 of the Code enumerates what would be good defence to a husband when such an application has been filed by the wife and the wife is able to prove the necessary facts referred to in sub-sec. (1) of sec. 488 of the Code she would be disentitled to receive such maintenance from her husband if she is living in adultery. (1) of sec. 488 of the Code she would be disentitled to receive such maintenance from her husband if she is living in adultery. She would be disentitled to such maintenance if without any sufficient reason she refuses to live with her husband. She would be also disentitled to claim such maintenance if they are living separately by mutual consent. The Court will have jurisdiction to grant maintenance if the conditions referred to in sub-sec. (1) are satisfied. But in that event the husband can show that the wife has become disentitled to it in view of any of the conditions existing as referred to in sub-sec. (4 ). ( 10 ) IT is significant to note that some words that find place in subsec. (3) of sec. 488 of the Code in the proviso were added by Act No. 9 of 1949 by sec. 2 of that Amending Act. Those words are:-IF a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wifes refusal to live with him. It is thus evident that as the section stands now a husbands contracting marriage with another wife or keeping a mistress is considered to be a just ground for his wifes refusal to live with him. ( 11 ) IT is true that there is conflict amongst several High Courts in regard to the interpretation of this sub-sec. (4) of sec. 488 of the Code. I will first refer to the decisions of those High Courts which to a certain extent lend support to the arguments advanced by Mr. Shah. ( 12 ) IN Ramashi Mondal v. Nirode Barani Dasi A. I. R. 1948 Calcutta 186 Lodge J. has observed at pages 186 and 187 as under:-IT is clear that since 1942 if not earlier the husband has been denying that the petitioner is his wife. He insisted that she had no claim on him that he had do claim on her and that he would not keep her. This means clearly that he consented to her living apart. The wife in 1942 dropped the proceedings under sec. 488 Criminal Procedure Code and consented to give up her claims to live with her husband and accepted Rs. 1 0 as consideration. This means clearly that he consented to her living apart. The wife in 1942 dropped the proceedings under sec. 488 Criminal Procedure Code and consented to give up her claims to live with her husband and accepted Rs. 1 0 as consideration. It seems to me perfectly clear that the parties both consented to living apart at all events in 1942 and until the present application was filed. It is clear therefore to my mind that the parties were living separately by mutual consent until the application under sec. 488 Criminal Procedure code was filed. In these circumstances it seems to me that sub-sec. (4) of sec 488 Criminal Procedure Code is a bar to the wife being granted any allowance under the provisions of this section. Whether she may claim by any other procedure is a matter on which I express no opinion. It is significant to note that the agreement was entered into by the husbands brother and the wife agreed to give up all future claims. The wife gave up all the future claims and accepted a sum of Rs. 1 0 Thereafter she lived apart from the husband. It therefore means that the facts in that case were that the wife on acceptance of a lump sum of money gave up her claim regarding future maintenance and agreed to live separate and was living separate for years together. The husband was avoiding her claim from the very beginning and it was at the intervention of her husbands brother that the agreement was arrived at when they agreed to Rs. 1 0 and they were paid accordingly. That decision can be distinguished also on facts. ( 13 ) IN Krishnappa v. Sivagami Achi A. I. R. 1953 Madras 549 Ramswami J (as he then was) narrated the facts as under:-THE short facts are:- Sivagami Achi the respondent before us is the lawfully wedded wife of Krishnappa Chettiar. Krishnappa Chettiar and Sivagami Achi could not carry on their married life by 1948. This Chettiar as is common in these parts was keeping a concubine and wanted to take a second wife also. Therefore the husband and wife entered into an arrangement which has been marked as Ex. D-1 and it is nobodys case that this arrangement was not entered into or that the husband is going behind Ex. D-1. Agreement Ex. This Chettiar as is common in these parts was keeping a concubine and wanted to take a second wife also. Therefore the husband and wife entered into an arrangement which has been marked as Ex. D-1 and it is nobodys case that this arrangement was not entered into or that the husband is going behind Ex. D-1. Agreement Ex. D-1 revealed that a lump sum of Rs. 5 500 was given. A mortgage was to be created for a particular sum. Furthermore some amount was agreed to be paid per annum. The wife thereafter made an application under sec. 488 asking for maintenance of Rs. 100/per month instead of Rs. 100/per annum which had been secured for her by Ex. D-1. It was in relation to those facts that Ramaswami J. observed:-THERE can be no doubt that a Magistrate purporting to act under this section cannot assume the functions of a Civil Court and give judgment in accordance with a bond evidencing a compromise entered into between a husband and a wife. Where a claim for maintenance is amicably settled by the parties the Magistrate should simply dismiss the petition if pending before him. ( 14 ) THE main decision on which reliance has been placed by Mr. Shah is a Division Bench decision of Saurashtra High Court in Govindram v. Ratanbhai Nathuram A. I. R. 1955 Saurashtra 105. At page 107 has been observed:-THEREFORE by reason of the applicants second marriage the opponent would be; justified in living separate and if the applicant does not maintain her then that would amount to his neglect or refusal entitling her to an order of maintenance from the Court. But the facts here are sufficient to take the case out of the ambit of the above rule. There is already a compromise between the parties providing for separate maintenance in case the wife and husband did not agree and she wished to live separate from her. That compromise is binding on both the parties whatever may be the reason for her living separate. As it is after the compromise she lived only for a few days with the husband and then left him voluntarily. Since then she has lived separate for about eleven or twelve years. That compromise is binding on both the parties whatever may be the reason for her living separate. As it is after the compromise she lived only for a few days with the husband and then left him voluntarily. Since then she has lived separate for about eleven or twelve years. It may be she can live separate from the husband on the latters taking a second wife; all the same her remedy is to enforce the compromise which is subsisting and she cannot ignore it and insist on the husband paying her maintenance otherwise than in pursuance of the compromise. If she herself does not care to ask for the maintenance provided for by the compromise and ignores the compromise altogether the situation is of her own choosing and not because of the husband-s neglect or refusal. Her obvious remedy is to enforce the compromise in a civil Court and an application under sec. 488 Criminal Procedure Code should not be entertained. In support of that proposition the Division Bench of Saurashtra High Court has relied upon Budha Rama v. Khem Devi A. I. R. 1926 Lahore 469 and Sham Singh v. Mt. Hakam Devi A. I. R. 1930 Lahore 524. This decision undoubtedly supports the argument advanced by Mr. Shah. With respect if I may say so it does not lay down the correct principle. If the wife is obliged to live separate and agree to take maintenance agreed upon on account of compelling circumstances as to when the husband has married another wife or has kept a concubine and it is not possible to stay together it could not be said that the wife is living separately by mutual consent. Living separate by mutual consent can only be inferred if both the sides on their own independent of circumstances and without any compulsion of events or circumstances agree to live separately possibly each desiring to live the life he or she likes it could be said that there is such separate living by mutual consent. It is only in such circumstances that the Legislature intended to disentitle the wife to claim maintenance by this speedier remedy provided under sec. 488 of the Code. It is only when such facts are proved there would be a good defence for the husband to disentitle the wife to claim maintenance. It is only in such circumstances that the Legislature intended to disentitle the wife to claim maintenance by this speedier remedy provided under sec. 488 of the Code. It is only when such facts are proved there would be a good defence for the husband to disentitle the wife to claim maintenance. If such an interpretation is not given to those material words in sec. 488 (4) of the Code the husband would get a good handle to enter into such an agreement pay her for some time and then stop paying. The wife would not be in a position to take this summary remedy. For that the wife will have to file a suit and to get a decree for maintenance. That is not what appears to have been contemplated by the Legislature. It appears that the Legislature intended that there would be a good defence in case the wife has agreed to live separately by mutual consent independent of circumstances and not under the compulsion of events or circumstances which obliged her to live separately and has accepted such an agreement to get maintenance at a particular rate. ( 15 ) ONE another significant fact to be borne in mind is that this is not a case where the wife has come to enforce the obligation arising under agreement Ex. 4. If that was so it could be said that the criminal court could not entertain such an application. It is only the civil Court that could do it. Before the wife becomes entitled to claim maintenance under sub-sec. (1) of sec. 488 of the Code she has to satisfy the Court that she is the legally wedded wife of her husband; the husband has sufficient means; and the husband has refused or neglected to maintain her. If she is living separate and 6he has no sufficient reason to live separate she would be disentitled to claim maintenance. Furthermore if any one of the conditions referred to in sub-sec. (4) of sec. 488 of the Code is established in that event also she would be disentitled to claim any maintenance. I am therefore of the opinion that the Court is entitled to inquire into the anterior circumstances that led to such an agreement. It will not be correct to say in my opinion that on a mere look at the agreement like agreement Ex. I am therefore of the opinion that the Court is entitled to inquire into the anterior circumstances that led to such an agreement. It will not be correct to say in my opinion that on a mere look at the agreement like agreement Ex. 4 the Courts jurisdiction will be taken away as has been urged by Mr. Shah. It is true that in this agreement Ex. 4 the mention made is:-WHEREAS the party of the first part and the party of the second part were married in the year 1942 Jilla Shekhupura West Punjab and since that date the party of the first part and the party of the second part were living as Husband and Wife at Ahmedabad for the last 20 years and one son who is aged about 21 years namely Shivedevsingh alias Sukhdev (name given by father) is the outcome of this marriage. There were quarrels and exchange of hot words between the parties of the first part and the party of the second part and there was no family peace and as such the parties have mutually decided to live separately from to-day and it has been mutually agreed that the party of the first part will give Rs. 100/ (rupees one hundred only) per month towards monthly maintenance to the party of the second Part and the second party has also agreed to this. it has been further provided therein:-THE second party withdraws the registered A. D. notice given to the first party dated 26-12-1964 and the first party also withdraws his registered A. D. reply dated 1 given to the Advocate of the second party. All the disputes upto date between both the parties regarding maintenance have come to an end. It is also provided in para 2 of that agreement that the amount shall be remitted to the party of the second part by money order on every first of the calendar month and if the party of the first party fails to pay the agreed amount per month the party of the second part will be entitled to take her remedy according to law. ( 16 ) IT therefore does not indicate that there was any agreement that she would not be entitled to claim maintenance under sec. 488 (1) of the Code. ( 17 ) MR. ( 16 ) IT therefore does not indicate that there was any agreement that she would not be entitled to claim maintenance under sec. 488 (1) of the Code. ( 17 ) MR. Shah has laid emphasis on the recitals made in this deed that the parties had agreed to live separately by mutual consent. He therefore urged that it was not within the jurisdiction of this Court to inquire into the anterior circumstances that led the parties to enter into such an agreement. on a mere look at this agreement the Court should throw away this application filed by the wife. I am not prepared to accept this submission as well founded. It cannot be said that on a mere such agreement without anything more the jurisdiction of the criminal Court will be taken away. The Court has to look into the anterior circumstances and find out whether really the parties were living separately by mutual consent as contemplated within the meaning of the words used in sub-sec. (4) of sec. 488 of the Code. This conclusion of mine gets support from several decisions to which I will make reference presently:- ( 18 ) IN Ram Saran Das v. Mt. Ram Piari A. I. R. 1937 Allahabad 115 Allsop J. has observed:-THE mutual consent as used in sub-sec. (4) sec. 488 Criminal Procedure Code means a consent on the part of the husband and wife to live apart no matter what the circumstances may be. Where wife refuses to live with her husband on some specific ground such as cruelty or the fact that he is keeping another woman it cannot be said that the husband and wife are living apart by mutual consent even if the husband does not insist that wife should live with him. In that case also there was an agreement entered into and maintenance amount was fixed on certain conditions. The order was enforced on several occasions by the Magistrate. Finally in February 1936 Mt. Ram Piari (wife) made the application which had given rise to those proceedings. She said that her husband Ram Saran Das had not paid her anything since May 1935 and she asked the Magistrate to take action against him to force him to make the monthly payments which were in arrears. The Magistrate passed the order in her favour. That order was challenged on the ground that sub-sec. She said that her husband Ram Saran Das had not paid her anything since May 1935 and she asked the Magistrate to take action against him to force him to make the monthly payments which were in arrears. The Magistrate passed the order in her favour. That order was challenged on the ground that sub-sec. (4) of sec. 488 of the Code contains a provision that no wife was entitled to receive allowance from the husband living separate by mutual consent and if there is a compromise in which it is agreed that the woman shall live apart from the man then it may be said that they are living separate by mutual consent - The relevant observations made therein are:-I do not think that the expression mutual consent is capable of being interpreted in this way. I think the mutual consent as used in the sub-sec. (4) of sec. 488 means a consent on the part of the husband and wife to live apart no matter what the circumstances may be. Where a wife refuses to live with her husband on some specific ground such as cruelty or the fact that he is keeping another woman I do not think that it can be said that the husband and wife are living apart by mutual consent if the husband does not insist that the wife should live with him. If the expression had this meaning a husband could I imagine defeat almost any conceivable application for maintenance under sec. 488 Criminal Procedure Code. These applications are made for the most part if not always by women who are living apart from their husbands and who for some reason are unable to live with their husbands. The husband in the first instance may attempt to defeat the claim by saying that he is willing to support his wife if she will live with him but if it is found that she has good reason for not living with him he can then turn round and defeat the claim by saying that he does not want her and it might then perhaps be said that there was mutual consent to a separation because she did not want to live with her husband and he did not want her to live with him. I do not think that the expression mutual consent can be interpreted in this way the view taken in the Lahore decision has not been approved by Allsop J. ( 19 ) IN a later decision in Smt. (Chameli v. Gajraj Bahadur A. I. R. 1954 Allahabad 33 Randhir Singh J. has taken the same view. He has also dissented from the view taken by the Lahore High Court in Budhu Ram v. Khem Devi A. I. R. 1926 Lahore 4659 and Sham Singh v. Hakam Devi A. I. R. 1930 Lahore 524 and the Calcutta view in S. W. Colbert v. Mrs. H. Colbert; A. I. R. 1933 Calcutta 776. The relevant observations made by him at pages 34 and 35 are:-THE learned Counsel for the applicant has cited-Taralakshmi Manu Prasad in A. I. R. 1933 Bombay 499 in which the view taken by the Calcutta High Court was also discussed. The Division Bench of the Bombay High Court in the reported case however came to the conclusion that the mere existence of a decree of a civil Court directing a certain sum to be paid for maintenance did not oust the jurisdiction of a Magistrate in a proper case to make an order under sec. 488 Criminal Procedure Code. This view was in substance at variance with the view taken by the Lahore High Court which held that an order embodying an agreement to pay maintenance passed by a Civil or Criminal Court would subsequently bar the jurisdiction of a Magistrate to entertain an application under sec. 488. The interpretation of the words mutual consent has been the subject of a decision in a ruling of this Court-Ram Saran Das v. Mr. Ram Piari A. I. R. 1937 Allahabad 115. The facts of that earlier Allahabad decision have been referred to and the following observations of Allsop J. have been quoted:-WHERE a wife refuses to live with her husband on some specific ground such as cruelty or the fact that he is keeping another woman I do not think that it can be said that the husband and wife are living apart by mutual consent if the husband does not insist that the wife should live with him. If that expression had this meaning a husband could I imagine defeat almost any conceivable application for maintenance under sec. 488 Criminal Procedure Code. If that expression had this meaning a husband could I imagine defeat almost any conceivable application for maintenance under sec. 488 Criminal Procedure Code. After quoting those observations Randhir Singh J. observed:-THE words mutual consent imply that the desire to live apart should emanate from both parties and that none of them should be forced to take recourse to separate living and ultimately to submit to it only as a result of circumstances brought about by one of the parties. If a husband is unwilling to allow his wife to live with him or has taken a second wife the only course open to such a wife would be to live apart and if she under those circumstances agreed to accept maintenance and live separate. such a separate living would not be deemed to be the result of mutual consent. The test therefore should be to find out if the agreement for separate living and payment of maintenance was the outcome of the desire of both parties independently reached by each of them or if one of the parties was forced to submit by circumstances to agree to separate living and payment of maintenance. The view taken by Allsop J. in A. I. R. 1937 All. 115 appears if I may so with great respect to be the correct view and I find myself in complete agreement with it. With respect if I may say so. I am also in complete agreement with the view expressed by Randhir Singh J. and Allsop J. ( 20 ) IN Shri Laisram Nipamacha Singh v. Smt. Khaidem Ningol Sakhi Devi A. I. R. Manipur 49 Rajvi Roop Singh. Judicial Commissioner has also taken a similar view observing:-THE separate living for not entitling the wife to get maintenance must be the result of a deliberate and express agreement between the parties The words mutual consent in sub-sec. (4) means a consent on the part of the husband and wife to live apart no matter what the circumstances may be. Where a wife refuses to live with the husband on some specific ground legal cruelty or the fact that he is keeping another wife the husband and wife cannot be said to be living apart by mutual consent if the husband does not insist that the wife should live with him. Where a wife refuses to live with the husband on some specific ground legal cruelty or the fact that he is keeping another wife the husband and wife cannot be said to be living apart by mutual consent if the husband does not insist that the wife should live with him. Where the husband is unwilling to allow his wife to live with him or has taken a second wife the only course open to the wife would be to live apart and if under such circumstances she agreed to accept maintenance and live apart such separate living would not be said to be the result of mutual consent. The test therefore should be to find out if the agreement for separate living and payment of maintenance was the outcome of the desire of both parties independently reached by each of them or if one of the parties was forced to submit by circumstances to such agreement. Where the wife is not prepared to live in a separate house but insists on living with the husband. but he starts living separate or where the husband having an option to live with his wife chooses to live separate it is not that they are living separately by mutual consent. But where each party finds it impossible to live amicably and comfortably with the other and is content that they should live separately the separate living is by mutual consent. If the Court finds that they are living separately by mutual consent it cannot pass an order under the section. This point has been dealt at length by Grover J. (as he them was) in Dr. Mukand Lal v. Smt. Jyotishmati A. I. R. 1958 Punjab 390 wherein he was referred to the decision of the Madras High Court given by Ramaswami J. A. I. R. 1953 Madras 549 decisions of the Lahore High Court decisions of Calcutta High Court decision of the Saurashtra High Court and the aforesaid two decisions of the Allahabad High Court referred to by me. The relevant observations made at pages 391 and 392 are:-THE essential question is what meaning is to be given to the words underlined (herein single quotation marks-Ed. ). Mr. Manchanda has strongly relied on Krishnappa v. Sivagami Achi A. I. R. 1953 Madras 549 and the cases referred by Ramaswami J. in that decision. The relevant observations made at pages 391 and 392 are:-THE essential question is what meaning is to be given to the words underlined (herein single quotation marks-Ed. ). Mr. Manchanda has strongly relied on Krishnappa v. Sivagami Achi A. I. R. 1953 Madras 549 and the cases referred by Ramaswami J. in that decision. There an agreement had been entered into between the husband and the wife. It was held that the remedy of the wife did not lie under sec. 488 but she could file a civil suit for denouncing the agreement or for getting enhanced maintenance on account of the rise in costs. Ramaswami J. however did not discuss the matter fully as to what was the meaning of mutual consent as employed in sub-sec. (4) of sec. 488 Criminal Procedurde Code. The test that has been laid down in some authorities that the Court should find whether the agreement for living separately was the outcome of the desire of both parties independently reached by them or if one of the parties was forced to submit by circumstances to such an agreement was not considered. Reliance was placed on a judgment of Dalip Singh J. in Budhu Ram v. Khem Devi A. I. R. 1926 Lahore 469. In that case the learned Judge observed that once a compromise was entered into to pay maintenance there was no refusal to maintain on the part of the husband and therefore sec. 488 did not apply. In Sham Singh v. Mst. Hakam Devi A. I. R. 1930 Lahore 524 Addison J. accepted the report of the Sessions Judge on the ground that a compromise had been effected in the course of proceedings under sec. 488 and therefore no order could be made under the provisions of that section itself. In none of these cases any such question arose which is being considered in the present case. In Nathun Sonar v. Mst. Maturwa Kuer 49 Indian Cases 346 (A. I. R. 1919 Patna 339) it was observed that a contract voluntarily and freely made and entered into between the parties by reason of the ill-treatment of the husband would be an act of their own volition. In Nathun Sonar v. Mst. Maturwa Kuer 49 Indian Cases 346 (A. I. R. 1919 Patna 339) it was observed that a contract voluntarily and freely made and entered into between the parties by reason of the ill-treatment of the husband would be an act of their own volition. These observations were purely obiter as in that case the husband and the wife were living apart in obedience to the decree of a Panchayat and it was held that they could not be said to be living apart with mutual consent within the meaning of sub-sec. (4) of sec. 488. In 5. W. Colbert v. Mrs. H. Colbert A. I. R. 1933 Calcutta 776 (2) a compromise had been effected in proceedings for maintenance under sec. 488 and it was held that its enforcement came within the jurisdiction of a civil Court. In that case there was no opposition to the rule and the point decided was of a different nature. In Ramsashi Mondal v. Nirode Barani Dasi A. I. R. 1948 Calcutta 186 a compromise had been effected during proceedings under sec. 488 and the parties had been living apart. It was held that they were living separately by mutual consent. A great deal of emphasis has been laid on a decision of the Saurashtra High Court in Govindram v. Ratanbai Nathuram A. I. R. 1956 Saurashtra 105. In that case it has been laid down that where there is already a compromise between the parties providing for separate maintenance the compromise is binding whatever may be the reason for the wife living separately. It may be that she can live separately from the husband on the latters taking a second wife; all the same her remedy is to enforce the compromise which is subsisting and she cannot ignore it and insist on the husband paying her maintenance otherwise than in pursuance of the compromise. Her obvious remedy is to enforce the compromise in a civil Court and not an application under sec. 488 Criminal Procedure Code. Shah C. J. discussed largely the meaning and scope of the two provisions in sub-sec. (3) of sec. 488. That provision however is not relevant in its entirety for deciding the point involved in the present case. Her obvious remedy is to enforce the compromise in a civil Court and not an application under sec. 488 Criminal Procedure Code. Shah C. J. discussed largely the meaning and scope of the two provisions in sub-sec. (3) of sec. 488. That provision however is not relevant in its entirety for deciding the point involved in the present case. With regard to the effect of living separately as a result of a compromise the learned Chief Justice referred only to certain Lahore cases and held that the remedy of the wife was to enforce the compromise in a civil Court. To my mind the authority which is apposite for the purpose of the present case is the decision of Randhir Singh J. in Chameli v. Gajral Bahadur A. I. R. 1954 Allahabad 33. After quoting the relevant observations from the two decisions of the Allahabad High Court the following pertinent observations have been made by Grover J. :-ANOTHER weighty reason was imported by Randhir Singh J. . in support of the view which he adopted. According to him if a party executes an agreement but does not pay maintenance or drives the wife to the necessity of filing a suit for recovery of maintenance from time to time and then takes protection under the provisions of sec. 488 (4) it would be difficult for a woman entitled to maintenance to get an effective remedy in Courts of law. Sec. 488 has been enacted only to meet such contingencies and to save a party entitled to maintenance from a prolonged litigation and to get an effective remedy speedily and without much expense from a criminal Court. With respect I follow the view of Randhir Singh J. in its entirety. Whatever doubts may have existed prior to the amendment of sec. 488 by sec. 2 of the Code of Criminal Procedure (amendment) Act 1949 it seems to me that all the previous decisions which were largely based on the effect of refusal of the wife to live with the husband would no longer be good law in view of the amended provision which is to the effect that if a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wifes refusal to live with him. If a husband decides to marry another wife and has actually married one the first wife can legitimately claim to live separately and if the husband and the wife mutually agree that she should do so it cannot mean that the wife is living separately by mutual contest in the sense in which these words are used in sub-sec. (4) of sec. 488 of she Code of Criminal Procedure. The right which the law gives to the wife in sec. 488 to live separately if the husband contracts a second marriage will be defeated if living separately by mutual consent is to be given the meaning that whenever husband and wife decide to do so whatever the compelling necessity for the same. it must be considered that they are living separately by mutual consent. The meaning to be attributed to these words in the context in which they appear must be the same as has been given by Randhir Singh J. in the Allahabad decision referred to before. Mutual consent according to him would apply to separate living if such separate living was the result of a desire of both parties. This desire should be based on the volition of both the parties without any element of impelling or compelling circumstances. If a wife knows that the husband is determined to break up the marriage and to take another woman as his wife and if she decides to live separately because of that reason it cannot be said that the separate living is the result of any desire on her part to live away from her hearth and home willingly and without the element of compulsion forcing the decision against her will. After laying down this ratio in the light of the facts established it was held in this view of the matter the decision of Jyotishmati to live separately after 1948 was not the result of a desire on her part to live separately because of her own seeking and personal volition but she was compelled to do so on account of the force of circumstance in which she was placed. I hold therefore that the view of the Courts below was quite correct that Dr. Mukund Lal could not seek the assistance of the provisions contained in sub-sec. (4) of sec. 488 Criminal Procedure Code. I hold therefore that the view of the Courts below was quite correct that Dr. Mukund Lal could not seek the assistance of the provisions contained in sub-sec. (4) of sec. 488 Criminal Procedure Code. With respect I may say that I am in complete agreement with the view expressed by Grover J. (as he then was) in this case. Similar view has been taken by S. B. Capoor J. in Smt. Gurdial Kaur v. Jangsingh A. I. R. 1959 Punjab 185 . ( 21 ) THERE is one decision also of Hyderabad High Court in Rao Saheb v. Prayag Bai A. I. R. 1956 Hyderabad 189. It could no doubt be distinguished on the ground that in that case it appears that there was no agreement to live separate. All that was agreed upon was that the husband was willing to pay certain amount specified in the agreement i. e. as contemplated under sub-sec. (4) of sec. 488 of the Code. ( 22 ) MR. Shah appearing for the petitioner-husband invited my attention to a decision of this Court in Ambalal v. Khembai X G. L. R. 390 That decision is given by Shelat J. The question for consideration before the Court in that case was whether in a proceeding under sec. 488 of the Code if the Court had passed an order on the basis of the agreement arrived at between the parties before the Court the Court can enforce an order passed on the basis of that compromise. Differing from the view taken by the Lahore High Court Shelat J. held that there was nothing in the provisions of sec. 488 of the Code which disentitled the Court to act on the admissions of the parties and to pass an order on the basis of the compromise. To such a question posed before the Court an argument was advanced relying upon the case in Govindram Narandas v. Ratanbai Nathuram A. I. R. 1956. Saurashtra 105 that the compromise cannot be enforced in an application under sec. 488 of the Code. In that behalf a passing reference has been made at page 396 in these terms for distinguishing that case:-IN that case as the facts show the matter was not settled during pendency of the application before the Magistrate under sec. Saurashtra 105 that the compromise cannot be enforced in an application under sec. 488 of the Code. In that behalf a passing reference has been made at page 396 in these terms for distinguishing that case:-IN that case as the facts show the matter was not settled during pendency of the application before the Magistrate under sec. 488 of the Criminal Procedure Code and what was sought to be placed before the Court was an agreement arrived at by the parties providing for separate maintenance in case the wife and husband did not agree and she wished to live separate from him. That agreement was arrived at between them before and not in the proceedings before the Magistrate and when such is the case it is no doubt true that any such agreement can be enforced in the civil Court. That case therefore can have no application to the facts of this case. These are the passing observations made to distinguish a particular case. They are merely in the nature of obiter dicta. It could not be said that the Court considered the question that is posed before me and laid down this ratio which will be binding on me. As a matter of fact such a question did not arise in that case and has not been decided in that case. ( 23 ) IT is true that in - In re Taralakshmi A. I. R. 1938 Bombay 499 the Bombay High Court had not to decide this very question as has been urged before me but it had to decided question whether such a proceeding can or cannot be taken under sec. 488 of the Code on account of existence of a decree of a Civil Court directing a certain sum to be paid for maintenance. In that connection a Division Bench consisting of Beaumont C. J. and Sen J. has observed:-THE mere existence of a decree of a civil Court directing a certain sum to be paid for maintenance does not oust the jurisdiction of a Magistrate in a proper case to make an order under sec. 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make under sec. 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make under sec. 488 and the Magistrate should make it clear in his order that anything paid under the decree of the civil Court will be taken into account against anything which he may order to be paid. It is significant to note that the Calcutta view in Saraswati Debee v. Narayandas Chatterji A. I. R. 1932 Calcutta 698 has not been approved of by the Division Bench of the Bombay High Court. ( 24 ) ON examination of the relevant provisions of sec. 488 and the aforesaid authorities I am of opinion that the view taken by the Allahabad High Court and the Punjab High Court is the correct view. The view taken by the Calcutta High Court Lahore High Court and the Saurashtra High Court is not the correct view in my opinion if I may say so with great respect. ( 25 ) IN my opinion the Court is entitled to inquire into the anterior circumstances that led to such an agreement. In the instant case on examination of those circumstances it is found that this petitioner (husband) kept a mistress. The wife was therefore compelled to live separate and such an agreement to live separate and get maintenance amount was entered into. Even thereafter the husband for sometime did not pay the amount. He refused and neglected to pay it. The wife was obliged to take recourse to the remedy provided in sec. 488 (1) of the Code. Even in such a proceeding the husband made baseless allegations against the wife. Even his written statement revealed that he wanted to back out of this agreement. He even did not take up the contention that the wife was living separate on account of mutual consent. The wife was obliged in view of the compelling circumstances brought about by the husband to live separate and so she agreed to live separate and take maintenance. On account of keeping of a mistress the wife was entitled to live separate. There was sufficient reason for her to live separate. It is not a case where the Wife independent of circumstances without any compulsion of events or circumstances out of her own free will and volition has chosen to live separate. On account of keeping of a mistress the wife was entitled to live separate. There was sufficient reason for her to live separate. It is not a case where the Wife independent of circumstances without any compulsion of events or circumstances out of her own free will and volition has chosen to live separate. That being so it could not be said that the wife was living separate by mutual consent. The learned Magistrate has therefore rightly come to the conclusion that there is no bar as has been contended in view of the provisions of sec. 488 of the Code. ( 26 ) THIS was the only contention raised before me on behalf of the petitioner-husband and that contention falls. It is therefore evident that the petition fails. ( 27 ) IT is significant to note that so far as other facts required to be proved and which are held proved there is evidence which has been found to be acceptable and reliable. This Court cannot therefore interfere with that finding and that appears to be the reason why the learned Advocate appearing for the husband has not raised any other point. The result is that the petition fails. ( 28 ) THE revision petition is dismissed. Rule is discharged. Petition dismissed. .