JUDGMENT : Rule. Rule made returnable forthwith and heard finally. 2. The petitioner and the respondent entered wedlock prior to about 30 years. The case of the petitioner before the Ld. Magistrate (F.C.) in the proceedings under Section 125 of the Code of Criminal Procedure was that after some period of the marriage, she was ill treated by the respondent she could not conceive and the respondent was demanding Rs.25,000/- from her parents. He subjected her to cruelty. He eventually drove her out of the matrimonial house. She entered into house of her brother. Though she attempted 4-5 times for restitution of conjugal rights yet, he refused to restore matrimonial relations with her. Thus he neglected and refused to maintain her. She is unable to maintain herself. The respondent (husband) however is owner of about 20 acres of agricultural land which is fertile. He earns income of about 10.00 lacs per year from the agricultural lands. He runs a grocery shop, owns a tractor and a truck. He is thus having sufficient means and yet has not provided any maintenance allowance to her. 3. The respondent asserted that wife left his company before long and ultimately there took place divorce by mutual consent. The divorce was recorded in an agreement deed executed by the petitioner on 31-03-1994. At the time of such divorce, he gave amount of Rs.10,000/- to the petitioner towards full and final settlement of the claim of the maintenance allowance. Consequently, she abandoned her right to recover any maintenance allowance for the future period. He further alleged that she is owner of the agricultural land gat N 0.164 consisting of 54 Rs. area and in thus having sufficient means of livelihood. He alleged that he is unable to provide separate maintenance allowance because he has not sufficient means and that due to subsequent marriage performed by him because, after the divorce he is required to maintain wife and three children. On these premises, he sought dismissal of the application for separate maintenance allowance. 4. The parties adduced oral and documentary evidence in support of their pleadings. The Ld. Judicial Magistrate came to the conclusion that the divorce deed could not be regarded as legal and proper. The Ld. Magistrate held that so called divorce deed (Exh.26) did not anal the marriage between the parties because no custom was proved in this behalf. The Ld. The parties adduced oral and documentary evidence in support of their pleadings. The Ld. Judicial Magistrate came to the conclusion that the divorce deed could not be regarded as legal and proper. The Ld. Magistrate held that so called divorce deed (Exh.26) did not anal the marriage between the parties because no custom was proved in this behalf. The Ld. Magistrate further held that, the petitioner was not having sufficient means to maintain herself. He held that she was neglected by the respondent though he has got sufficient means to provide maintenance allowance to her. The Ld. Magistrate therefore allowed the application vide order dated 13-12-2007. The petitioner was awarded maintenance allowance @ Rs.500/- p.m. from the date of the application. The respondent preferred criminal revision application vide CRA No.1/2008. By the impugned order, the Ld. Additional Sessions Judge, Gangakhed, allowed the criminal revision application of the respondent and thereby quashed the maintenance order rendered in favour of the petitioner. Hence this Writ Petition. 5. Heard the learned counsel for the parties. 6. The question for determination in the petition is whether the petitioner-wife lost he right to claim separate maintenance allowance on account of execution of the private document i.e. divorce deed (Exh.26) and that such document creates estoppal against her. 7. Before I proceed to scrutinize the evidence and consider the rival submission, let it be noted that there is no tangible evidence to infer that there is a custom prevailing in the caste, to which the parties belongs which recognizes such divorce by mutual consent merely on execution of a private document. 8. It is only when, there is a custom prevailing in the community of parties such customary divorce may be recognized as legal one. Otherwise, divorce must be as per requirement of Section 13 of the Hindu Marriage Act, 1956. The recitals of the private document (Exh.26) would show that the spouses belong to "Maratha" caste. Admittedly, they are member of higher caste and therefore, are governed by the provisions of Hindu Marriage Act. In legal paralance, the private documents which is scribed on a stamp paper of Rs.5/- is total in effective to bring about divorce between the parties. The divorce deed would show that the petitioner was residing separately because she could not deliver a child. In legal paralance, the private documents which is scribed on a stamp paper of Rs.5/- is total in effective to bring about divorce between the parties. The divorce deed would show that the petitioner was residing separately because she could not deliver a child. So, it is amply clear that because of her physical inability to conceive a child she was required to reside separately from the husband. 9. There is no tangible evidence to infer that respondent attempted to restore conjugal relationship with the petitioner. He filed an application for restitution of conjugal rights but the said proceeding terminated against him. The petitioner categorically stated that she was ready to reside with the respondent. It is true that for a long period she did not file proceedings under Section 125 of the Cr.P.C. However, that could not be the reasons to deny her claim. One cannot be obvious of the fact that petitioner is illiterate, rustic and middle aged woman. She comes from rural area. The delay is filing of such application due to non assertion of the right would not take away her legal right to claim the maintenance allowance. 10. On consideration of the evidence tendered by the parties, it emerges that the petitioner is unable to maintain herself. Mere fact that she owns a small pieces of land will not be sufficient to infer that she is able to maintain herself from the agricultural income. Both the courts below have concurrently held that the respondent has got sufficient means. The concurrent finding of fact that he owns agricultural lands and has got sufficient means is based on material placed on record. He has married another woman. It is true that he is required to maintain three children and second wife. However, considering the enhanced liability to maintain the children and second wife. However, considering the enhanced liability to maintain the children and second wife, the Ld. Judicial Magistrate awarded only Rs.500/- p.m to the wife which is, in fact, on much lower side having regard to the present prices of the essential commodities. 11. The Ld. Additional Sessions Judge was much impressed by the recitals of the private divorce deed (Exh.26) styled as "Kabulayatnama". The attesting witness to the document was examined by the respondent. The due execution of the said document is proved. 11. The Ld. Additional Sessions Judge was much impressed by the recitals of the private divorce deed (Exh.26) styled as "Kabulayatnama". The attesting witness to the document was examined by the respondent. The due execution of the said document is proved. Still, however, the document itself is not legal on so as to bring about divorce between the parties. The mere payment of Rs.10,000/- at the relevant time in the year 1984 could not be regarded as consideration for abandonment of the future claim for maintenance allowance to which the petitioner was entitled. 12. The Ld. Sessions Judge seems to have completely ignored the significant terms in the document (Exh.26). The recitals of the document (Exh.26) would show that the spouses had fallen apart because their natures were different from each other and the petitioner could not conceive a child. The relevant terms regarding payment of Rs.10,000/- is as follows :- (Received Rs.10,000/- towards the maintenance allowance in presence of witnesses.) From the above term of the agreement, it does not appear that the petitioner had relinquished her claim of future maintenance. It is only acknowledged by the petitioner that she had received Rs.10,000/ towards the maintenance allowance. It can be the past maintenance allowance or the arrears of the maintenance allowance or the future claim. However, the recitals of the document do not show that her right to claim future maintenance allowance was forfeited on account of such payment. This factual aspect is over looked by the Ld. Additional Sessions Judge. In my opinion, that relevant terms of the document is not properly interpreted while holding that the petitioner was debarred from claiming maintenance allowance under Section 125 of the Cr.P.C. 13. The learned counsel for the respondent invited my attention to certain observations in Vitthal Hiraji Jadhav Vs. Harnabai Vitthal Jadhav and another reported in 2003(4) Mh.L.J. 23 : [2003 ALL MR (Cri) 1094]. A Single Bench of this Court held that "Where husband and wife are residing separately by mutual consent, the wife has no right to claim alimony from the husband." The Ld. Counsel for the petitioner has referred to observations in Tejaswini d/o. Anandrao Tayade and another Vs. Chandrakant Kisanrao Shirsat and another reported in 2005(3) Mh.L.J.137 : [2005 ALL MR (Cri) 2173]. Counsel for the petitioner has referred to observations in Tejaswini d/o. Anandrao Tayade and another Vs. Chandrakant Kisanrao Shirsat and another reported in 2005(3) Mh.L.J.137 : [2005 ALL MR (Cri) 2173]. Another Single Bench of this Court held that unless there is decree of divorce passed by the competent court marriage cannot be dissolved by such consent deed and since execution of the deed was illegal if had no effect on the relinquishment of maintenance therein. Similar view is take in Ashabai Himmatrao Junghare Vs. Himmatrao Kisanrao Junghare reported in 2007(1) Mh.L.J. 802 : [2007 ALL MR (Cri) 1587. 14. The clinching question is whether the petitioner legally abandoned her future claim of maintenance allowance. The testimony of petitioner would show that the respondent subjected her to cruelty after about 18 years of the marriage because he did not like her. She narrated she attempted for reconciliation on 2-3 occasions but he refused to maintain her. Admittedly, he has performed second marriage. The performance of second marriage by the respondent is perse indicative of his refusal to maintain the petitioner. She denies that there was mutual separation and divorce was brought about vide the document (Exh.26). Her brother P.W. Atmaram supported her contention. The testimony of the respondent purports to show that the petitioner had filed proceedings against him so as to prohibit him from performing the second marriage. He asserted that there after there was compromise between the spouses and divorce by mutual consent was brought about. In other words, he also did not state that they were residing separately by mutual consent prior to so called divorce by mutual consent. Considering the factual and legal position, it cannot be said that the petitioner was estopped from claiming separate maintenance allowance under section 125 of the Cr.P.C. only because the so called documents styled as "Kabulayatnama" (Exh.26) has been proved by the attesting witnesses in this view of the matter, the impugned judgment rendered by the Ld. Additional Sessions Judge Gangakhed is unsustainable in as much as the evidence on record is misread and the document is misinterpreted. 15. In the result, the impugned judgment is quashed and the judgment rendered by the Judicial Magistrate F.C. is restored. Rule made absolute accordingly. Petition allowed.