Judgment :- 1. The revision petitioner was directed by the thief Judicial Magistrate, Trichur in M. C. No. 18 of 1978 filed under S.125 of the Code of Criminal Procedure (for short the Code) to pay monthly maintenance of Rs 80 per month to his wife, the respondent herein. This order is challenged now. The revision petition came up for consideration before one of us (Bhat, J.) and the matter was referred to a Division Bench as there appeared to be an apparent conflict between the decisions of two learned single Judges of this Court on one of the points involved in this case. 2. The revision petitioner (C. pw. 1) married the respondent herein (Pw. 1) on 13-6-1971 in accordance with the customs of their community. Two children were born in the wed-lock M. C 11 of 1976 filed by the wife before the Chief Judicial Magistrate, Trichur claiming maintenance from C. pw. I under S.125 of the Code, was allowed. In Crl R P. No 35 of 1976 before the Sessions Judge, Trichur an offer made by the husband was considered and he was directed to reserve tickets within a period fixed by the court for the wife and children to go to Bangalore where he is employed. The reservation was not made and the Crl. R.P. No. 35 of 1976 was dismissed. C pw. 1 filed Crl. M P. No 639 of 1977 before this Court under S.482 of the Code The petition was disposed of, allowing C. pw. 1 to take his wife and children with him to Bangalore within a particular time. He took them to Bangalore and they lived together. 3. pw. 1 alleges that after some time he brought her to Trichur and by fraud, coercion and intimidation obtained her signatures in some documents without her consent and left her and the children at her father's house and she later came to know that one of the papers so signed (Ext. D2) is a divorce agreement. Immediately she filed M. C. 18 of 1978 for maintenance. C. pw. 1 resisted the claim on the ground that by virtue of Ext. D2, by mutual consent the marriage has been dissolved and they are living separately and therefore she is not entitled to maintenance from him. At the stage of evidence he offered to maintain her in case she lives with him. C. pw. 1 resisted the claim on the ground that by virtue of Ext. D2, by mutual consent the marriage has been dissolved and they are living separately and therefore she is not entitled to maintenance from him. At the stage of evidence he offered to maintain her in case she lives with him. Learned Magistrate on a consideration of the entire evidence held that Ext. D2 does not make out a valid divorce and the marriage is still subsisting, that there was no agreement between the parties to live separately, that the offer made by C.Pw. I is not bona fide, that she has no means of her own and he has means to maintain her and accordingly ordered him to pay maintenance at the rate of Rs. 80/- per month for her. 4. Learned counsel for the revision petitioner urged three contentions before us First, that from Ext. D-1 and Ext. D-2 it can be inferred that the parties are living separately by mutual consent and therefore under S.125(4) of the Code she is not entitled to separate maintenance; second, that though it is for the husband to show that she refuses to reside with him, burden is on the wife to show that there are sufficient reasons for her refusal and the burden has not been discharged by her and the lower court has taken a wrong view on burden of proof; and third, that the offer made by him must be accepted as genuine and bona fide. 5. The contention regarding living separately by mutual consent is based primarily on Exts. D-1 and D-2. Ext. D-1 bears pw. 1's signature on revenue stamp and is dated 11-12-1977. In Ext. D-1 pw. 1 purports to state that monthly maintenance must be paid to the two children at the rate of Rs. 90/- till they attain the age of 18 years, that if the jewellery mentioned therein is returned and the maintenance amount due to the children is paid, she is prepared to have a divorce from her husband. Ext. D 2 is a registered marriage dissolution agreement signed by both parties on 12121977. It recites that there were misunderstandings for some time, that they feel that if the marital tie is to continue it may lead to unfortunate consequences and therefore as per the document their marital tie is severed. Ext. D 2 is a registered marriage dissolution agreement signed by both parties on 12121977. It recites that there were misunderstandings for some time, that they feel that if the marital tie is to continue it may lead to unfortunate consequences and therefore as per the document their marital tie is severed. It also recites that thereafter they will not have any mutual rights or obligations, financial or physical, that it is agreed that the children are to live with the wife and each of them is at liberty to marry again, that the financial and other accounts arising out of their marital tie have been settled, and in future neither has the right to ask or to demand accounts. There is a recital that the liability for maintaining the children has been separately settled. 6. In the M. C. petition, the wife alleges that the documents were brought about by coercion and intimidation. The petition proceeds on the basis that the marital tie still continues. In the written statement filed by the husband, he supported Exts. D-1 and D-2 as free from any taint. This dispute remains to be decided in a suit filed by her and now pending. 7. It is significant to note that there is no specific contention raised in the counter that because they are living separately by mutual consent she is not entitled to claim maintenance. The tenor of the counter is that the marital tie has ended by Ext. D-2 agreement, and under the agreement she has given up her claims and therefore she is not entitled to maintenance. In the counter he did not take the stand that Ext. D-2 will not operate as a valid divorce. The learned Magistrate found that Ext. D-2, even if valid and genuine and free from the defects alleged by pw 1, will not operate as valid divorce. For the purpose of these proceedings, learned counsel for the revision petitioner submitted that he does not challenge this finding since divorce by a registered agreement is not recognised under the Hindu Marriage Act. The contents and tenor of the counter show that he did not intend to put forward a defence that pw. 1 is ineligible to claim maintenance because they as spouses are living separately by mutual consent. 8. The contents and tenor of the counter show that he did not intend to put forward a defence that pw. 1 is ineligible to claim maintenance because they as spouses are living separately by mutual consent. 8. Sub-section (4) of S.125 of the Code contemplates three contingencies under which the wife shall not be entitled to maintenance from her husband under sub-section (1). One of the contingencies mentioned is where "they are living separately by mutual consent;" 'they' refer to wife and husband mentioned earlier in sub-section (4). When two persons are referred to as wife and husband, it must necessarily follow that they are being referred to as parties to a subsisting marriage. To attract sub-section (1), they must live separately by mutual consent while the marital tie is subsisting. Such mutual consent must be the outcome of the desire of both spouses, qua spouses, to reside separately. Normally a husband is liable to maintain his wife, whether she resides with him or elsewhere. If her residence elsewhere is on account of her refusal to live with him and discharge her marital obligations, his obligation to maintain her ceases. But if her refusal to live with him is justifiable, his liability to maintain her will not cease. If it is the husband who leaves his wife, and neglects her, then also his liability to maintain her in the form of payment of separate maintenance will subsist. Under sub-section (4) of S.125. a different consequence arises where the spouses live separately by mutual consent In such a case they agree, by implication, that they will, at any rate, for the present, cease to have any right to insist on the discharge of marital obligations towards each other. Such obligations include marital consortium as well as the responsibility of the husband to maintain the wife. This is the reason for the provision in sub-section (4) that where the spouses decide to live separately by mutual consent, the husband is not liable to pay maintenance allowance to the wife. It must also be mentioned that where the wife revokes or withdraws her consent for such separate residence, her right to claim maintenance revives and her ineligibility to claim maintenance ceases. It must also be mentioned that where the wife revokes or withdraws her consent for such separate residence, her right to claim maintenance revives and her ineligibility to claim maintenance ceases. In this view it is clear that in order to attract sub-section (4), their separate residence and the basis of their separate residence, viz , mutual consent, must have been on the supposition and with the consciousness that they continue to be spouses and but for the mutual consent they are bound by mutual rights and obligations Where they are lawfully divorced, sub-section (4) will not come into operation at all, since a divorced wife does not reside separately by mutual consent but resides so, as a consequence of her status as a divorcee. Where the parties, under the supposition that they are no longer husband and wife as they have put an end to their marital tie, reside separately or consent to reside separately, such residence or consent cannot be in derogation of their mutual rights and obligations as spouses. In such a case their willingness to reside separately is only a reflection or consequence of their belief that they are no longer husband and wife. If the divorce is shown to be not valid in law, their willingness or consent to reside separately on the basis of a de facto divorce, cannot be treated as mutual consent for separate residence as spouses Parties in this case believed that they have put an end to the marital tie under Ext. D2. The agreement Ext D2 evidences such a belief. Their separate residence subsequent to Ext. D2, cannot be treated as a "separate residence by mutual consent" with the consciousness that they still continue to be spouses. Consciousness of a subsisting marriage is the essential basis for the ineligibility contemplated under the particular part of sub-section (4) of S.125 Since such consciousness is lacking in this case, pw. I does not become ineligible by virtue of subsection (4) of S.125 of the Code. 9. Learned counsel for the revision petitioner placed strong reliance on the decision in George v. Podiyamma (1968 KLT. 176). I does not become ineligible by virtue of subsection (4) of S.125 of the Code. 9. Learned counsel for the revision petitioner placed strong reliance on the decision in George v. Podiyamma (1968 KLT. 176). In that case, the spouses entered into a registered receipt in which the wife stated that she has received certain amounts as dowry amount etc., due to her since she had no desire to continue the marital tie in future, as agreed to by both of them. They lived separately thereafter. As per the receipt, the suit filed by the wife for returning the dowry amount, certain ornaments alleged to have been taken by the husband and for maintenance was compromised. In this context, Sadasivan J. observed as follows: "The intention, on her part to live away from the husband once for all, is clearly seen reflected in the above quoted statement in Ext. D2. A wife who agrees to live separately, forfeits her claim for maintenance for ever and she cannot subsequently come forward and claim it on the ground that the marriage subsists for all legal purposes It was urged that in the absence of a formal divorce it can be presumed that the marital tie continues and the husband's obligation to maintain the wife continues. Dealing with this argument, Sadasivan J. observed as follows: "The husband is always entitled to the consortium of his wife Consortium normally implies cohabitation of the spouses and when this right is denied to him he has no obligation to maintain her. Right to maintain springs from the husband's enjoyment of the society and services of his wife and not merely from an empty or ornamental status as wife conferred by law. A wife living away cannot be made to dictate to the husband that he should maintain her since she is legally the wife; such arrogance should be condemned as it is against public policy and out of tune with modern tendencies of social life, however, strong "the fling of sentimentalism or the glow of chivalry be," in support of it." Accordingly the order for maintenance passed by the Magistrate was set aside. 10. A consideration of the above extracts will show that the decision really rested on the ground that the wife was living apart and had no just ground or sufficient reason to live apart and deny consortium to the husband. 10. A consideration of the above extracts will show that the decision really rested on the ground that the wife was living apart and had no just ground or sufficient reason to live apart and deny consortium to the husband. The case is also clearly distinguishable on facts. In the present case, Ext. D2 is clear evidence to show that the parties purported to sever the marital tie and consequently believed that they are no longer spouses. In such a case, the "mutual consent to live apart", if any, was arrived at not in derogation of marital rights and duties in which case alone sub-section (4) of S.125 of the Code will be attracted, but by virtue of their belief that they were no longer husband and wife and therefore had to live apart. In George's case, the document did not even purport to effect a divorce or put an end to the marital tie. Therefore, in that case, the parties could not have been under the belief that they were no longer husband and wife. The mutual consent to live apart in that case was arrived at only in the light of future prospect of a divorce and not under an existing belief that the marital tie was already ended as in the present case. The parties in George's case did not have the consciousness that they were no longer husband and wife. The mutual consent in that case was in spite of their consciousness that the marital tie subsists. In such a contingency, sub-section (4) of S.488 of the Code of 1898 (which is identical to the corresponding provision in the present Code) would be attracted. Moreover, as already stated by us, that decision proceeded on the basis that a wife who refuses to live with the husband and deny him consortium without any sufficient reason is not entitled to maintenance. In that view there could not be said to be any refusal or neglect on the part of the husband as contemplated in sub-S. (1) of S.125 in George's case. We hold that the ratio of that decision cannot be applied to the facts of the present case. Ext. D2 also does not spell out a decision to reside separately by mutual consent. We hold that the clause "live separately by mutual consent" cannot apply to the facts of the present case. 11. We hold that the ratio of that decision cannot be applied to the facts of the present case. Ext. D2 also does not spell out a decision to reside separately by mutual consent. We hold that the clause "live separately by mutual consent" cannot apply to the facts of the present case. 11. Now we turn to the argument based on the offer made by the husband. C pw. 1 did not, in his counter, make an offer to maintain pw. 1 if she goes and lives with him. The counter does not spell out a case that she refuses to go and live with him and therefore he is not liable to maintain her. pw. 1 was asked in cross-examination whether she is prepared to go and live with him and she answered in the affirmative. In re-examination she stated that she does not go back to her husband because she is afraid to do so. After having obtained such an answer, C.Pw.1 during his evidence made an offer. The learned Magistrate held that the offer was not genuine or bona fide. The learned counsel for the revision petitioner contended that this finding is erroneous and is not based on a consideration of the facts and circumstances of the case and that, under sub-section (4) of S 125 burden is on the wife to show that she has sufficient reason for refusing to live with her husband and the burden has not been discharged by her Learned counsel for the respondent, on the other hand, contended that there is sufficient material on record to show that the offer made is not genuine or bona fide; he further contended that burden of proof in regard to sub-section (4) of S.125 of the Code rests on the husband and not the wife. We have been referred to decisions of two learned single Judges of this Court in Sarada v. Kumaran (1977 KLT. 942) and Mammad v. Rukhiya (1978 KLT. 875). We also notice that there is another decision on the point in Gopalakrishnan Nair v. Thankamma (1970 KLT 403) 12. In Gopalakrishnan Nair's case (1970 KLT. We have been referred to decisions of two learned single Judges of this Court in Sarada v. Kumaran (1977 KLT. 942) and Mammad v. Rukhiya (1978 KLT. 875). We also notice that there is another decision on the point in Gopalakrishnan Nair v. Thankamma (1970 KLT 403) 12. In Gopalakrishnan Nair's case (1970 KLT. 403), Moidu J. on a consideration of clause (4) and the first proviso to sub-section (3) of S.488 of the Code of 1898 (for short 'the old Code') came to the conclusion that the first proviso to sub-section (3) as well as sub-section (4) govern the entire section including sub-section (1). The judgment indicates that the burden is . on the wife to make out "just grounds" for refusal to live with the husband. But we notice that it was held that in case the offer made by the husband was not bona fide and therefore the question of burden of proof did not really arise for consideration. 13. In Sarada's case (1977 KLT. 942), the husband made an offer to maintain the wife if she lives with him. Janaki Amma J. held that the husband has failed to prove that there was an offer to take back the wife and there was refusal by her to live with him and therefore he is liable to pay maintenance to her (vide Para.13 of the judgment). In this view, it appears that the question of burden of proof regarding "sufficient reason" did not really arise for decision in that case. We may also notice that the learned Judge was of the view that Clause (4) of S.125 of the Code was in the nature of an exception to sub-section (1) and when it is an exception to the general liability of the husband to maintain her under sub-section (I), he must prove the existence of the circumstances which entitle him to put forward the exception and observed that burden of proof (regarding sufficient reason for the refusal of the wife to live with him) rests entirely on him. 14. In Mammad's case (1978 KLT. 875), the wife refused to go and live with husband and wanted him to go and live with her in the tharwad house where her karanavan also was living and the relationship between the karanavan and the husband was not happy. 14. In Mammad's case (1978 KLT. 875), the wife refused to go and live with husband and wanted him to go and live with her in the tharwad house where her karanavan also was living and the relationship between the karanavan and the husband was not happy. She set up a custom whereunder the husband was bound to live in the wife's house. The custom was not accepted and it was held that the custom pleaded is not a sufficient reason for her refusal to live with her husband in his house. In that connection, Poti J. (as he he then was) considered the question of burden of proof in regard to matters arising in clause (4) of S.125 of the Code as also the second proviso to clause (3) of S.125 and held that while the husband has to prove adultery or the refusal of the wife to live with husband or that the spouses are residing separately by mutual consent, it is for the wife to show sufficient reason for her refusal to live with the husband. The learned Judge distinguished the observation in Narayanan's case on facts. The principle laid down in this decision, according to the learned counsel for the revision petitioner, requires reconsideration 15. The decisions of other High Courts are conflicting. High Court of Lahore (see Ramsingh v Mt. Rambai, AIR. 1943 Lahore 223), Gujarat High Court (See Baiganga v Harijan Chiman Shanker and another, 1965 (1) Cr. L. J. 387), High Court of Karnataka (See Kuntappa v. A. K. Desai and others, 1972 (II) Mysore LJ. 415) and Mysore High Court (See Rahmath Saheb v. Zainabi, 1973 Cr. L. J 879) took the view that the burden of proof lay entirely on the husband. Nagpur High Court (see Emperor v. Shambai and another, A1R. 1941 Nagpur 175), Allahabad High Court (see Ram Khelawan v. State, AIR 1952 Allahabad 958), Punjab High Court (see Ranjit Kaur v. Dr. Avtar Singh, AIR 1960 Punjab 221), Bombay High Court (see Teja Bai v. Shanker Rao Baswanappa, AIR. 1966 Bombay 48), Mysore High Court (see State of Mysore v. S. M. Mamadapur and another, AIR. 1967 Mysore 173) and Travancore-Cochin High Court (see Narayanan Neelakantan v. Amini Narayani, AIR 1952 T. C. 562) took the view that burden of proving "just ground" or "sufficient reason" lay on the wife. 16. 1966 Bombay 48), Mysore High Court (see State of Mysore v. S. M. Mamadapur and another, AIR. 1967 Mysore 173) and Travancore-Cochin High Court (see Narayanan Neelakantan v. Amini Narayani, AIR 1952 T. C. 562) took the view that burden of proving "just ground" or "sufficient reason" lay on the wife. 16. We may now refer to the relevant provisions of S.125 of the Code. "125. (1) If any person having sufficient means neglects or refuses to maintain (a) bis wife, unable to maintain herself, or (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. (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 refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order." 17. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order." 17. S.125 of the Code has enlarged the scope of the beneficiaries thereunder when compared to S.488 of the old Code. Besides these changes in sub-section (1), there is practically no other change in the other parts of the section except that the juxtaposition of the two provisos appearing below sub-section (3) has now been reversed under the Code. In other words, the first proviso in the old Code relating to offer which may be made by the husband to maintain the wife and the refusal by her to live with him and the duty of the Magistrate to consider the grounds etc. has now been shown as second proviso, while the second proviso in S.488 of the old Code stating that no warrant should be issued unless application has been made to the Court within a period of one year from the due date has now been shown as the first proviso. This reversal of the positions of the two provisos is of some significance. 18. As per the second proviso occurring below sub-section (3) of S.125, of the Code where the husband offers to maintain his wife on condition of her living with him and she refuses to live with him the Magistrate may consider the grounds for refusal stated by her and make an order under this section notwithstanding such offer if he is satisfied that there is just ground for so doing. The proviso, as we understand it, clearly spells out that the burden is on the wife, to put forward grounds in support of her refusal and to satisfy the Magistrate that the grounds are just. Failure on her part to do so will result in an adverse order against her under the section. If burden of proving "just ground" under this proviso rests on the wife, it is not possible to hold that the burden of proving "sufficient reason" under subsection (4) of S.125 of the Code rests on the husband. There is no qualitative difference between the expression "just ground" mentioned in the proviso and the expression "sufficient reason" mentioned in sub-section (4). 19. There is no qualitative difference between the expression "just ground" mentioned in the proviso and the expression "sufficient reason" mentioned in sub-section (4). 19. It is argued that the proviso applies only to the stage of enforcement contemplated in sub-section (3) of an order of maintenance passed under sub-section (1) and therefore the burden of proof spelled out in the proviso cannot be applied in considering an offer made prior to the passing of the maintenance order under sub section (1). Reported decisions of various High Courts have taken conflictings views in this regard. Decisions in Mt. Roshan Bano v. Azim (AIR. 1943 Lahore 59), Ram Singh v Mt. Rambai (AIR. 1943 Lahore 223), Ramji Malviya v. Munnidevi Malviya (AIR 1959 Allahabad 767), Iqbalunnissa Begum v. Habib Pasha (A1R.1961 Andhra Pradesh 445) and Mehrunnisa v. Noor Mohammad (AIR. 1971 Allahabad 138) support this contention, while the decisions in Ram Khelawan v. State (AIR. 1952 Allahabad 958), H. Syed Ahmed v. N P. Taj Begum (AIR. 1958 Mysore 128), Teja Bai v. S. Baswanappa (AIR 1966 Bombay 48), Ranjit Kaur v. Dr. Avtar Singh (AIR. 1960 Punjab 221), Govindram Narandas v. Ratanbai Nathuram (AIR. 1956 Sourashtra 105) and Shambu Reddy v. Ghalamma (AIR. 1966 Mysore 311) took the contrary view. In Gopalakrishnan Nair v. Thankamma (1970 KLT. 403) Moidu J. took the view that the proviso governs the entire section. In Pennamma v. Neelakantan Nair (1967 KLT. 258) Isaac J. also had taken the same view. 20. The second proviso contemplates making "an order under this section." The use of the expression "section" and not "sub-section" is significant. This has been done only to emphasise that the proviso governs not only sub-section (3) but also sub-section (1), since even at the stage of passing maintenance order it is open to the husband to make an offer. Under sub-section (1), Magistrate has to be satisfied that the husband "neglects or refuses" to maintain his wife. In considering the same, Magistrate has to apply his mind regarding rights of parties, offer made by husband, grounds urged by wife et cetera. The intention in incorporating the second proviso below sub-section (3) is only to elucidate this particular aspect not only for the purpose of sub-section (3), but also for the purpose of sub-section (1). In considering the same, Magistrate has to apply his mind regarding rights of parties, offer made by husband, grounds urged by wife et cetera. The intention in incorporating the second proviso below sub-section (3) is only to elucidate this particular aspect not only for the purpose of sub-section (3), but also for the purpose of sub-section (1). If this proviso had been placed just below sub-section (1), a doubt would have arisen if an offer could be made at the enforcement stage covered by sub-section (3). To avoid any such doubt the proviso has been placed below sub-section (3). The relevant proviso was the first proviso in the old Code and its location led to a view that since the other proviso related exclusively to a warrant, this proviso also must relate only to the enforcement stage. It is to counter this view that, in enacting the new Code (of 1973) the juxtaposition of the two provisos has been reversed. We accept the view that the relevant proviso applies to the entire section. Under the proviso, burden of proving "just ground" rests on the wife. 21. Janaki Amma J. in Sarada's case viewed sub-section (4) as an exception to sub-section (1) and observed that burden of proof even regarding "sufficient reason" is on the husband. Sub-section (4) cannot be treated as an exception to sub-section (1). As indicated by Hegde J. (as he then was) in Syed Ahmad v. N. P. Taj Begum (AIR. 1958 Mysore 128), the several subsections cannot be considered in isolation and must be considered cumulatively since they form an integral whole. Looking at the picture in its entirety, and reading all these sub-sections and the proviso together, we are satisfied that the burden of proof regarding "just grounds" as spelled out in the proviso must lend colour to the burden of proof regarding "sufficient, reasons" under sub-section (4) also. We affirm the decision in Mammad's case (1978 KLT. 875) on the question of burden of proof. The observations to the contrary in Sarada's case (1977 KLT. 942) are really obiter and according to us, with respect, do not reflect the correct position of law. 22. We affirm the decision in Mammad's case (1978 KLT. 875) on the question of burden of proof. The observations to the contrary in Sarada's case (1977 KLT. 942) are really obiter and according to us, with respect, do not reflect the correct position of law. 22. While it is true that burden of proving refusal to live with the husband rests on the husband and the burden of proving sufficient reasons rests on the wife, when both sides adduce evidence and marshall circumstances before the court, the matter has to be decided on an appreciation of evidence and the circumstances and not merely on the basis of burden of proof. Considering the high legislative purpose behind the provisions in S.125 of the Code, even where the wife, on account of her lack of experience for other reasons, does not plead specific grounds or reasons for refusing to go back to her husband or does not adduce specific evidence is that regard, it is the duty of the court to examine the circumstances available in the case and see if these circumstances are or are not sufficient to justify the wife's refusal to husband's offer. 23. On facts, first question is whether she refused to go back and live with her husband. This is dependent not only on her own state of mind and inclinations but also on the genuiness or bona fide nature of the offer made by the husband and the appreciation by the court of his real intention. He has no case that at any time prior to the proceedings he was willing to take her back. In his counter also he did not express any such willingness. We are not implying that merely because there was no prior willingness or offer or that no offer was made in the counter the offer must be held to be lacking in genuineness or bona fides; he has a right as contemplated in the proviso to sub-section (3) of S.125 to make an offer even at the stage of implementation of the order already passed. He has also a right to make an offer and rely on the refusal by the wife as a ground to get the maintenance order set aside under sub-section (5). Therefore, merely because his offer is belated, it cannot be rejected. He has also a right to make an offer and rely on the refusal by the wife as a ground to get the maintenance order set aside under sub-section (5). Therefore, merely because his offer is belated, it cannot be rejected. The background of the case, the prior conduct of parties, the setting in which the offer has been made and the motivations behind the offer have to be looked into in considering the genuineness or the bona fides of the offer. In so considering the matter, the belatedness of the offer is a circumstance which along with the other circumstances, may assume importance in testing the genuineness or bona fides of the offer. 24. Far from making an offer or expressing willingness to take her back, the husband, in his counter asserted that there has been a divorce and the divorce is not faced with any legal difficulty. When the wife filed a suit challenging Exts. D1 and D2, he took the stand that the documents are valid in fact and in law. The suit is still pending. The fact that an offer has been made at a belated stage by the husband who has been consistently contending that the so-called divorce effected under Ext. D2 is a valid divorce in law goes a long way in revealing the true nature of the offer made by him. Without going into the dispute whether Exts. Dl and D2 were executed voluntarily or not, it is not difficult to appreciate the apprehension in the mind of pw. 1 the wife that she will be in difficulty if she goes back to her husband, particularly in the light of the background of the case and the dispute between the parties. It is this apprehension which she expressed in examination when she stated that Learned Magistrate came to the conclusion that the offer made by the husband is not genuine or bonafide. Though his reasoning is not elaborate, we are of the opinion that the totality of the circumstances justifies the conclusion. In the light of this conclusion, her refusal to go back and live with him cannot lead to negation of the claim for maintenance made by her. Though his reasoning is not elaborate, we are of the opinion that the totality of the circumstances justifies the conclusion. In the light of this conclusion, her refusal to go back and live with him cannot lead to negation of the claim for maintenance made by her. In the background of the case and considering the past events and the pending litigation, we are not prepared to hold that there are no good reasons justifying her refusal to go back and live with him. 25. No grounds are made out to interfere with the order passed by the learned Magistrate. The revision petition is dismissed.