Atkinson, J.:— The petitioner Nathun Sonar is the husband of Mt. Maturwa Kuer. Unhappy differences have arisen between the husband and the wife, and it seems no longer possible that they can live together as man and wife. The husband is fully competent to maintain his wife. He is a man who carries on the business of money lending and he appears to be a man who has ample means and ability to pay his wife the trifling sum which has been awarded to her as a maintenance allowance but he contends that in point of law he is not liable to pay her any sum for maintenance. Owing to the continued ill-treatment which Mt. Maturwa received from her husband she invited some of her immediate castemen to bring the subject-matter of her ill-treatment by her husband before a panchayat; and accordingly in the month of December 1917 a meeting of the Panch was summoned to adjudicate upon the claim put forward by Mt. Maturwa that her husband continually ill-treated her and that therefore it was impossible for her to reside with her husband and that the husband should be ordered to make her an allowance in order that she might live apart from and independent of him.
2. The husband agreed to abide by the decision of the panchayat, and the matter of dispute was determined on the basis of an order or decree pronounced by the panch absolving the wife from the compulsion of living with her husband and requiring the husband to provide her with a separate place of occupation in his house and directing that he should pay her a monthly allowance of the sum of Rs. 5. The husband paid the sum of Rs. 5 for two months after the decision of the panch, but then made default and declined to make any further payment under the decree of the panch. On 18th June, 1918 Mt. Maturwa preferred a claim before the Magistrate under Section 488 of the Cr PC, asking that his jurisdiction might be invoked to award her a proper sum to be paid by her husband for maintenance. Before the learned Magistrate, and subsequently before the learned Sessions Judge of Shahabad, the point was taken that the jurisdiction conferred upon a Magistrate by virtue of Section 488 of the Cr PC was ousted under the provisions of sub-S. 4 of that section; and that the Court had no jurisdiction to make the order sought. Sub-S. 4, S. 488 runs as follows:
“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.”
3. The first two clauses of the section are not applicable to this case. The point that has been pressed before us by Mr. Sinha on behalf of the petitioner has reference only to the concluding clause of sub-S. 4, S. 488. It is contended that the Court's jurisdiction was ousted by reason of the fact that the husband and wife were living separately by mutual consent on the 18th June, at the time when the Court's jurisdiction was invoked to make an order for the payment of maintenance to the wife. We directed that the Crown should appear in this case so that it might be argued both on behalf of the petitioner and on behalf of his wife Mt. Maturwa and also because we considered it advisable in the interest of the public generally that a proper interpretation and construction should be put upon the meaning of sub-S. 4, S. 488. We are informed that there is no High Court ruling bearing upon the meaning of the words which now require decision. Mr. Sinha contends that inasmuchas the Musammat invoked the jurisdiction of the panch, and the husband submitted to abide by its decision that thus the husband and wife living apart in pursuance of the panch's decree were living apart under such circumstances as to constitute as between the husband and wife “a living apart separately by mutual consent.” By mutual consent. These words admittedly are the governing words arising for interpretation. An argument has been addressed to us on the meaning at the words “living apart separately.”
4. The learned Government Advocate contends that the husband and wife are not living separately in the legal acceptation of the term as employed in sub-S. 4, S. 488, inasmuch as the wife occupies an apartment reserved for herself in her husband's house. This fact appears to be incorrect; because the husband has married again since the decree of the panch, and Mt. Maturwa was then forced to abandon the accommodation reserved for her as provided by the direction of the panch. We do not think it becomes necessary to determine this point because everything must depend admittedly upon a construction of the words “by mutual consent.” Now it is conceded that if a person disobeys the decree or decision of a panch, that the panch's decree can be enforced by most drastic methods. The obligation upon all castemen is to obey the order of the panch on pain and penalty of being out casted, a matter which involves very serious consequences. In our opinion it cannot be contended that a payment made or an order obeyed in pursuance of the decision or injunction or decree of the panch, call it what you will is an act done voluntarily and by consent, as an act of free volition on the part of the person who is required to make such payment and do such act as may be enjoined or required to be done. It is rather an act done under compulsion and by the force of the authority of the panch whose decrees can be rigidly enforced.
5. What the law contemplates by sub-S. 4, S. 488 is what is well recognized in affiliation proceedings between husband and wife under English law, namely where the husband and wife have lived apart by a definite contract mutually made between them then affiliation proceedings are inapplicable A contract voluntarily and freely made and entered into by reason of the ill-treatment of the husband towards his wife would be an act of their own volition; if the parties separated under such terms, so that neither should molest the other and that both should be free to live and go where and wither they respectively wished, such an agreement would be a voluntary act and contract by the parties themselves unfettered by the decree or declaration of any tribunal. Can it be suggested that if a husband and wife who did not agree submitted matters of dispute existing between them to arbitration and the arbitrators made a certain award and the parties thereto abided by the terms of the award and acted upon it and lived apart that the husband and wife could then be said to be living apart by mutual consent? In my humble judgment any such argument would be hopelessly untenable. It would be an act done in obedience to the award which was capable of being and which might be legally enforced. We have no doubt that the ruling of the learned Sessions Judge of Shahabad was quite correct in point of law, that nothing that happened by reason of the reference to the panch and the decree of the panch thereon and whereby the petitioner and his wife lived apart subject to his paying a maintenance allowance to her could be construed as a living apart by the two by such mutual consent as would oust the jurisdiction of the Magistrate to make the order he did.
6. Accordingly we hold in this case that Mt. Maturwa is entitled to a maintenance allowance to be paid by her husband to her under the order of the Magistrate dated 20th August, 1918, and that the order of the learned Sessions Judge affirming the order of the Sub-divisional Magistrate aforesaid is well founded and that the petitioner before us is liable in point of law to pay to his wife the sum of Rs. 5 per month as and for her maintenance. The husband has paid this sum so awarded up to the 31st October under the terms of an antecedent order made by this Court. We will remit the case back to the learned Magistrate with a direction that the arrears are to be recovered from the 31st October to date and to be recovered each succeeding month as and when they fall due under his order and we hereby declare and direct that the order of the said Sub-divisional Magistrate, dated 20th August, 1918, is legally operative and binding as and between the petitioner and Mt. Maturwa, unless and until good cause can be shown which would justify the setting aside of such order.
7. Manuk, J.:— I agreed in the judgment delivered by my learned brother. In my opinion it can no more be said that the woman was living separate from her husband by mutual consent than that the husband was paying her Rs. 5 monthly by mutual consent. In both respects to the will of the parties was superimposed the will of the panchayat as expressed in its mandate. The fallacy of the position now taken up by the petitioner is further apparent from the fact that he paid the precise amount ordered by the panches for a period of two months in order to satisfy their mandate and escape the consequences of disobedience, and from the fact that he stopped payment on the ground that his wife had since the Panches' decision become unchaste. If that allegation were true, it would absolve him from all obligation to carry out the orders of the panchayat. It was on this ground alone that be endeavoured to resist the claim of his wife in the Magistrate's Court, and it was not till he went to the Sessions Judge that he asserted that the separation and payment were by mutual consent.
8. I have no manner of doubt that such a separation as we have here is not a separation by mutual consent. Consequently the Magistrate had jurisdiction to order maintenance.
V.S/R.K
9. Application dismissed.