JUDGMENT : ( 1. ) THIS revision filed under Section 397/401, Cr. P. C. is by the husband and is directed against the order of maintenance dated 14-8-1986 passed by Shri R. K. Shrivastava, IInd Additional Sessions Judge, Raigarh in Cr. Revision No. 72/1985. ( 2. ) THE parties are admittedly husband and wife married in accordance with Hindu law. They were married at Sarangarh about eight years before 30-7-1979, when the N. A. filed an application before the Judicial Magistrate, Class I at Sarangarh under Section 125 Cr. P. C. (hereinafter referred to as the Code) alleging that she was living separately from the applicant since last several years. She further, alleged that the applicant was treating her with cruelty and not giving food, with the result that she was forced to come with her father, with whom she was living at the present. She claimed a sum of Rs. 300/- per month as maintenance. She also submitted that the applicant had married again and has two children from his second wife. This application was opposed by the applicant who submitted that there has been a divorce by mutual consent and that the non-applicant was living separately by mutual con sent and was therefore not entitled to maintenance in view of Section 125 (4) of the Code. The applicant also produced an agreement (Ex. NA-1) dated 10-10-1977 to establish that the N. A. has voluntarily taken divorce and had given up her claim for maintenance. The learned Judicial Magistrate in his judgment dated 19-8-1985 accepted the plea of the applicant and held that in view of Section 125 (4) of the Code the N. A. was not entitled to any amount. The learned ASJ disagreed with the learned Judicial Magistrate and held that inspite of divorce, the N. A. is entitled to maintenance. He therefore directed payment of Rs. 100/- p. m. from the date of the application. It is this order which is impugned in this revision. ( 3. ) THE only question for consideration of this Court is whether Section 125 (4) of the Code is attracted in the present case ? It is clear that even a divorced wife is entitled to claim maintenance under Sub-section 1 of Section 125 of the Code and hence divorce, by itself, would not be enough to defeat this right. ) THE only question for consideration of this Court is whether Section 125 (4) of the Code is attracted in the present case ? It is clear that even a divorced wife is entitled to claim maintenance under Sub-section 1 of Section 125 of the Code and hence divorce, by itself, would not be enough to defeat this right. Bai Tahira v. Ali Hussain, AIR 1979 SC 362 and Mohd. Ahmed v. Shah Bano Begam, AIR 1985 SC 945 , are the authorities to support this proposition, which is otherwise clear from the bare text of the section. But, a claim for maintenance by a wife, which includes divorced wife, will not be granted if (1) she is living in adultery, or (2) she refuses to live with her husband without any sufficient reason, or (3) if they are living separately by mutual consent. Bai Tahira (supra) was a case of Muslim divorce and establishes that no proof is required to hold that a divorced wife was not living separately by mutual consent. According to Supreme Court, "divorce painfully implies that the husband orders her out of the conjugal home" and "if law has nexus with life this argument is still-born. " This logic is valid in all those cases where the husband divorced the wife. It must therefore be held that in all those cases where the husband has divorced his wife, it will be assumed that the wife is not living separately by mutual consent. On the same logic the divorced wife can not be held to be living separately without sufficient reason. Clearly therefore condition Nos. (2) and (3) are not attracted in cases where the husband has divorced the wife. Can a different conclusion be reached where the wife and not the husband, has obtained divorce ? No personal law has, so far, given such a right to the wife and hence such cases, if at all, can arise only under the statutory laws. In all statutes, whether it be the Hindu Marriage Act, 1956 or any other law, the right given to the wife to obtain a decree for divorce is limited and is available only when the husband treats her with cruelty etc. Unless the husband is held guilty of delinquency, no court would grant divorce to the wife. In all statutes, whether it be the Hindu Marriage Act, 1956 or any other law, the right given to the wife to obtain a decree for divorce is limited and is available only when the husband treats her with cruelty etc. Unless the husband is held guilty of delinquency, no court would grant divorce to the wife. In all such cases, the right of the wife to receive maintenance under Section 125 of the Code would remain intact and would not be defeated under Sub-section (4) thereof. Indeed Sub-section (4) of Section 125 of the Code would not be attracted in cases where the wife obtains a decree of divorce on proof of husbands delinquency. In this view of the matter, it will have to be held that a divorced wife is not living separately with the husband by mutual consent and would therefore be entitled to receive maintenance under this provision. ( 4. ) DOES it mean that the husband facing an application under Section 125 of the Code of the divorced wife is not entitled to take the plea that she was living separately either without sufficient reason or by mutual consent ? The answer would be in the affirmative if the husband pleads nothing but the divorce. But it would be wrong to hold that he is estopped from pleading and proving either sufficient reason or mutual consent only because there is in existence a divorce between them. There may be cases where divorce decree may be based on delinquency of the wife i. e. desertion, cruelty etc. and in such cases it may be possible for the husband to plead and prove that the wife was living separately for sufficient reasons and was therefore not entitled to maintenance. Similarly, if the wife being charged with desertion etc. consents to divorce and therefore lives separately from the husband, the husband may be able to prove that she was living separately by mutual consent. In all such leases, it will be the matter of proof and this conclusion will depend on facts of each case. But if nothing else except the divorce is pleaded and proved. Bai Tahira (supra) would come to the help of the wife and she would be entitled to maintenance. In all such leases, it will be the matter of proof and this conclusion will depend on facts of each case. But if nothing else except the divorce is pleaded and proved. Bai Tahira (supra) would come to the help of the wife and she would be entitled to maintenance. This interpretation of Section 125 (1) and (4) of the Code not only gives full effect to the intention of the legislature and achieves the purpose, but brings the provision in harmony with Section 25 of the Hindu Marriage Act, 1956, which vests wide powers in the court of making orders for maintenance and support of one spouse by the other where It passes a decree for divorce. ( 5. ) THOUGH in view of the aforesaid it is not necessary to determine factual controversies of the case, it may be examined if the view of the learned Judicial Magistrate was the correct view. Such a probe appears to be necessary as facts of this, case are similar to Bai Tahira (supra) where the Supreme Court has granted maintenance. In Bai Tahira (supra) the husband had divorced the wife. Thereafter in a suit, a consent decree was passed giving a flat and some shares in a co-operative society to the wife. In the compromise agreement, the wife had declared that she will hence forth have no claim or right whatsoever against the husband. Inspite of the consent decree, an application for maintenance under Section 125 of the Code was filed and maintenance granted. The Supreme Court ultimately upheld this claim. In the instant case, there is only the agreement dated 10-10-1977 (Ex. NA-1) whereby the N. A. had agreed to divorce and relinquished her right to claim maintenance. She also agreed to the second marriage of the applicant. If Bai Tahira (supra) survives, which it certainly does, this case must meet the same fate i. e. the N. A. must be granted maintenance without anything more. This Court is also not satisfied that because of this agreement, the N. A. is living separately by mutual consent. The agreement is for divorce and relinquishment of right of maintenance and contains nothing about living separately by mutual consent. Such a consent is required to be inferred from the fact of divorce by mutual consent. Such a conclusion is however not permissible in view of Bai Tahira (supra ). The agreement is for divorce and relinquishment of right of maintenance and contains nothing about living separately by mutual consent. Such a consent is required to be inferred from the fact of divorce by mutual consent. Such a conclusion is however not permissible in view of Bai Tahira (supra ). Indeed, it permits inference being forced out of marital home. Why did she agree to divorce ? If her statement that she was treated with cruelty and the husband wanted a second wife to bear children is to be believed, her agreement would not show her. desire to live separately by mutual consent. Then applicants witness Shri Rameshwar Prasad (NAW-2) has stated that two documents were written at that time, one by the applicant in favour of the N A and other by the NA in favour of the applicant. The document written by applicant husband is not on record. That he had signed one such document is his own statement in the Court. The agreement NA-1, does not bear his signature and is therefore not the document signed by him. If two documents taken together constituted the agreement as claimed by the applicant himself, no conclusion of mutual consent based on such agreements could be reached unless both the documents were brought on record. It would therefore be unfair to accept the agreement dated 10-10-1977 (NA-1) as the whole agreement. In this view of the matter no conclusion that parties were living separately by mutual consent can be reached in the case. Then, the document does not contain reasons why the parties were accepting divorce. Was it because the wifes allegation that she was forced to live separately was accepted by the husband ? Was it because the husband wanted to marry again ? Though the NA wife has stated why she was forced to live separately, there is nothing in the evidence of the applicant husband to decide this point. His evidence is confined to the agreement alone, without stating why such a course was adopted. The divorce, by itself, is not enough to held that the parties are living separately by mutual consent. Indeed the divorce, without anything more indicates otherwise. Under the circumstances, the evidence does not establish that the parties are living separately by mutual consent. ( 6. ) THE revision consequently fails and is dismissed.