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PETITIONER: GURMIT KAUR

       Vs.

RESPONDENT: SURJIT SINGH @ JEET SINGH

DATE OF JUDGMENT28/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (1)  39        JT 1995 (9)   138  1995 SCALE  (6)739

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.      The appellant was married to the respondent in the year 1971. She  filed an  application under  Section 125, Code of Criminal  Procedure,   1973  [for  short,  "the  Code"]  for maintenance on  July 21,  1988. The  learned  Magistrate  by order dated  February 28, 1990 granted a sum of Rs.100/- per month, i.e.,  Rs.200/- to the wife and Rs.100/- to his minor son with effect from the date of the order. On revision, the learned Additional  Sessions Judge, Kapurthala held that the wife  was  not  entitled  to  the  maintenance  and  granted Rs.100/- per  month only  in favour of the son. By its order dated July 2, 1991, the High Court confirmed the same on the ground that  the appellant was residing separately by mutual consent and  that, therefore,  she is  not entitled  to  the maintenance. The  maintenance to  the son  was  enhanced  to Rs.150/- per month. Thus this appeal by special leave.      We have  seen  the  agreement  for  divorce  by  mutual consent under  which the  parties have  settled their terms. The  parties   have  not  challenged  the  validity  of  the agreement of  divorce. Therefore,  we proceed on the premise that it  is a  valid agreement  and the appellant has stated thereunder that due to irrecoverable differences between her and her husband, she has no objection to the divorce and she has no  claim or  any demand  from him.  She has also stated that the  respondent is  at liberty  to marry  anyone of his choice. He accordingly married another lady.      Section 125 [4] of the Code provides as under:           "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

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    separately by mutual consent." The concept of living separately by mutual consent arises so long as  the marriage subsists and the parties agree to live separately  by   consent.  In   other  words,   during   the subsistance of the marriage, no party is entitled to lay any claim for maintenance from the other party.      In  view   of  the   divorce  agreement   referred   to hereinabove, the  marital relations have come to a terminus. By virtue thereof, the respondent had already contracted the second marriage. In other words, the first marriage has been put to  an end.  The appellant  thereby became  entitled  to claim maintenance and will continue to do so, so long as she remains unmarried and she is unable to maintain herself.      It is contended that the appellant is having two kanals of land and that, therefore, she is not totally dependent on the respondent.  This aspect of the matter was considered by the learned  Magistrate  and  after  due  consideration,  he awarded the  sum of  Rs.200/-  towards  maintenance  to  the appellant and Rs.100/- to the minor son. Therefore, the mere fact that  she is  having  two  kanals  of  land  is  not  a sufficient ground to disentitle her to receive maintenance.      The appeal  is accordingly  allowed. The  orders of the Additional Sessions  Judge and  the High Court to the extent of maintenance  to the  appellant are  set aside and that of the Magistrate  is confirmed.  In other words, the appellant and her  minor son are entitled to Rs.200/- and Rs.150/- per month respectively  in terms  of the  order of  the  learned Magistrate and the High Court for maintenance of the son.