Jammu & Kashmir High Court
Crlm Nos. 789/202 vs Mohan Singh on 6 March, 2026
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Sr. No. 100
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No.: CRM(M) No. 444/2020
CrlM Nos. 220/2022, 1709/2020,
1710/2020 & 1711/2020
c/w
CRM(M) No. 279/2021
CrlM Nos. 789/2021, & 790/2021
Reserved on:- 13.02.2026
Pronounced on:- 06.03.2026
Uploaded on: - 06.03.2026
Whether the operative part
or full judgment is pronounced Full
Sarita Devi .... Petitioner(s)
Through: - Mr. Jasbir Singh Jasrotia, Adv.
V/s
Mohan Singh
.....Respondent(s)
Through: - Mr. Vishal Kapur, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
1. The present judgment shall dispose of two connected petitions.
CRM(M) No. 444/2020 has been filed by the petitioner-wife
laying challenge to the order dated 03.11.2020 passed by Principal
Sessions Judge, Ramban (hereinafter referred to as “the Revisional
Court”), whereby the order dated 29.06.2020 passed by the Chief
Judicial Magistrate, Ramban “the trial court” in proceedings under
Section 488 Cr.P.C was set aside. CRM(M) No. 279/2021 has been
preferred by the respondent, calling in question the order directing
deduction of ₹5,35,192/- from his salary at the rate of ₹20,000/- per
month till realization.
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2. Briefly stated, the parties were married in the year 1990 and one
son was born out of the wedlock, who by now has already attained
majority. The petitioner alleged that the respondent contracted a
second marriage, whereupon she instituted proceedings under
Sections 494/109 RPC along with a petition under Section 488
Cr.P.C. before the Court of Sub-Judge, Ramban. On 28.08.1995,
the parties entered into a compromise, in pursuance whereof the
wife withdrew the complaint and the maintenance petition upon
receipt of ₹10,000/- as full and final settlement. The proceedings
were accordingly dismissed as withdrawn. It is also alleged that a
customary divorce (farakhtnama) was executed and thereafter the
parties started living separately.
3. Subsequently, the petitioner filed an application on behalf of her
minor son seeking maintenance in the year 2003 which was settled
before Lok Adalat with the respondent agreeing to pay ₹300/- per
month till the child attained majority. In later proceedings,
maintenance was enhanced to ₹600/ and in terms of another order
dt.31.07.2007 same was enhanced to Rs.1000/-per month w.e.f 1.1.
2007.In all subsequent proceedings she only claimed maintenance
for her minor child and projected herself as a divorcee.
4. On 29.06.2007, the petitioner lodged a fresh complaint alleging
bigamy. FIR No. 86/2007 was registered and charge-sheet filed
before the Court of Sessions Judge, Ramban. The said court, taking
into account the earlier compromise dated 28.08.1995 and invoking
Section 403 Cr.P.C., discharged the respondent vide order dated
31.12.2007.
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5. Thereafter, on 14.03.2008, the petitioner filed a fresh petition
under Section 488 Cr.P.C. without disclosing the earlier
proceedings. The Chief Judicial Magistrate, Ramban, vide order
dated 07.12.2011 dismissed the petition holding that the petitioner
had failed to establish subsistence of marital relationship and that
the respondent had placed sufficient material to show dissolution
of marriage by mutual/customary divorce.
6. The petitioner challenged the said order in revision. The Sessions
Judge, Ramban, vide order dated 07.12.2012, set aside the
dismissal and remanded the matter with directions to either call
upon the respondent to seek determination of dissolution of
marriage from a competent Court or frame an issue regarding the
existence and proof of customary divorce and permit the parties to
lead evidence and decide the matter afresh.
7. During the pendency of the proceedings after remand, the matter
was referred to Lok Adalat and on 23.11.2013 the parties entered
into a settlement whereby the respondent agreed to pay ₹2,50,000/-
as full and final permanent alimony and the marriage was to stand
dissolved. The amount was to be paid by 20.12.2013. On account
of non-payment, the petitioner challenged the Lok Adalat award in
writ proceedings and the same was set aside, directing the trial
Court to decide the maintenance petition afresh.
8. Upon reconsideration, the Chief Judicial Magistrate, Ramban, vide
order dated 29.06.2020 allowed the petition and directed the
respondent to pay maintenance at ₹2,000/- per month from the date
of filing of petition i.e. 14.03.2008 with 10% annual enhancement.
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9. The respondent preferred a revision petition, which was allowed by
Principal Sessions Judge, Ramban vide order dated 03.11.2020,
holding that the parties were living separately by mutual consent
and therefore the petitioner was disentitled to maintenance under
Section 488(5) Cr.P.C.
10. Ld. counsel for the petitioner contended that there was no proof of
lawful dissolution of marriage; that customary divorce was neither
proved nor established in terms of law; that in absence of a decree
of divorce, the petitioner continued to be legally wedded wife; and
that the Revisional Court travelled beyond its jurisdiction in
reappreciating evidence. Reliance has been placed upon the
judgment of the Supreme Court in “Shail Kumari Devi v. Krishan
Bhagwan Pathak (2008) 9 SCC 632″, to contend that revisional
jurisdiction cannot be exercised as if it were appellate jurisdiction.
Further reliance is placed on the Division Bench judgment of this
Court in “Vijay Kumari v. Ashwani Kumar, AIR 2021 J&K 74″,
wherein it has been held that statutory right of maintenance cannot
be waived by private agreement as it is founded on public policy.
11. Per contra, ld. Counsel for the respondent argued that the petitioner
had unequivocally admitted separation by way of customary
divorce; that she had lived separately since 1995 and revived the
claim only after the respondent secured Government employment;
and that the evidence on record clearly established that the parties
were living separately by mutual consent. Reliance is placed upon
Popat Kashinath Bodke v. Kamalabai Popat Bodke, 2003 2
MHLJ 608 and Vitthal Hiraji Jadhav v. Harnabai Vitthal Jadhav,
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2003 3 Civil CC 412 to contend that where parties are living
separately by mutual agreement, maintenance cannot be granted.
12. Having considered the rival submissions and upon examining the
records of both the trial and revisional courts, there is not any
dispute on the settled law that custom must be specifically pleaded
and strictly proved. The earlier remand order dated 07.12.2012 had
directed framing of an issue regarding proof of customary divorce.
The record reveals that no cogent evidence was led to establish
existence of a valid custom governing divorce in the community
and both of the courts below have affirmed this position. In
absence of proof of such custom or decree of divorce from
competent Court, the marital tie cannot be said to have been
lawfully severed.
13. However, Section 488(5) Cr.P.C. independently disentitles a wife
from maintenance if she is living separately by mutual consent.
The material on record reflects that the petitioner withdrew earlier
proceedings upon compromise dated 28.08.1995; admitted
separation in subsequent proceedings; sought maintenance for the
child describing herself as divorced; and remained separate for
over a decade. These circumstances were taken into account by the
Revisional Court.A close examination of the record reveals that the
petitioner withdrew earlier proceedings upon compromise dated
28.08.1995 after accepting ₹10,000/- as full and final settlement. In
subsequent proceedings pertaining to maintenance of the minor
child, she described herself as divorced. She remained separate
from the respondent for more than a decade without asserting any
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subsisting marital rights. These are not isolated statements but
consistent representations forming part of judicial record.
14. It is not in dispute that in the earlier round of litigation, the Trial
Court, vide order dated 07.12.2011, had categorically recorded a
finding that on the strength of the agreement executed between the
parties, they had mutually agreed to dissolve the matrimonial tie
and were residing separately by consent. The said finding was
based upon the admitted conduct of the parties and the terms of the
settlement arrived at between them.
15. When the matter travelled in revision, the Revisional Court, while
restoring the petition vide order dated 15.12.2013, did not disturb
or set aside the specific finding of the Trial Court that the parties
were living separately by mutual consent. The Revisional Court
merely directed the Trial Court to decide the petition afresh in
accordance with law. The remand was thus limited in scope and
did not obliterate the earlier factual determination regarding
consensual separation.
16. It is a settled principle that an admission constitutes substantive
evidence against its maker unless satisfactorily explained.
In “Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak
Gosavi, 1960 1 SCR 773″, the Hon’ble Supreme Court held that
admissions, if clear and unequivocal, are the best evidence against
the party making them, though not conclusive, and shift the burden
upon the maker to explain them. In the present case, the petitioner
had earlier withdrawn proceedings, accepted monetary settlement,
described herself as divorced, and remained separate for a
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considerable period. These acts constitute clear admissions of
consensual separation.
17. Since the impugned order passed by the Revisional Court has
reversed the order of maintenance granted by the Magistrate, it
becomes necessary to restate the settled legal position governing
the scope of revisional jurisdiction in proceedings under Section
488 Cr.P.C. Such a proceedings are summary and preventive in
nature, intended to provide a swift remedy against destitution. The
Magistrate is not required to adjudicate intricate questions of
matrimonial law or validity of marriage in strict sense. His inquiry
is limited to a prima facie satisfaction as to whether the parties
were married, whether they lived together as husband and wife,
and whether the husband neglected or refused to maintain the wife
during the subsistence of such relationship. In Sethurathinam v.
Barbara, (1970) 1 SCWR 589, the Supreme Court held that once
affirmative evidence exists on these aspects, the Magistrate need
not enter into complicated questions of sacramental validity or
personal law compliance, which fall within the exclusive domain
of the civil court. If evidence raises a presumption that the
applicant is the wife, that is sufficient for the purpose of
maintenance proceedings.
18. The Supreme Court in Rajathi v. C. Ganesan, AIR 1999 SC 2374,
further clarified that Section 125 Cr.P.C. proceeds on de facto
marriage and not marriage de jure. The validity of marriage in its
strict legal sense is not a ground to deny maintenance if other
statutory ingredients are satisfied. Equally well settled is the
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limitation on revisional interference. In Santosh (Smt.) v. Naresh
Pal, (1998) 8 SCC 447, and Parvathy Rani Sahu v. Bishnu Sahu,
(2002) 10 SCC 510, as reiterated in AIR 2011 SC 755, it was held
that a revisional court cannot reassess evidence and substitute its
own findings in place of the Magistrate’s positive findings of fact.
Only where the finding is negative and results in serious
consequences to the wife or child can the revisional court re-
evaluate the evidence to test the legal sustainability of the order.
Ordinarily, therefore, a positive order granting maintenance should
not be disturbed unless shown to be perverse or manifestly illegal.
19. In the present case, it is admitted that the marriage between the
parties was solemnized in the year 1990 and that they have a son. It
is also not in dispute that earlier proceedings under Section 488
Cr.P.C. and under Section 494 RPC were compromised on
28.08.1995, where the petitioner made a statement on oath that she
had received ₹10,000/- as full and final settlement and that she
would not pursue further proceedings. A document of “farkhati”
was executed, and thereafter the parties admittedly lived
separately. Significantly, from 1995 till 2003 the petitioner did not
claim maintenance for herself. When she filed proceedings for
maintenance of her minor son in 2003 and again in 2007 seeking
enhancement, she described herself as having been divorced by the
respondent in terms of the earlier settlement. These admissions
have not been denied.
20. Both the Trial Court and the Sessions Court have concurrently held
that the respondent failed to prove the existence of a valid custom
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permitting dissolution of marriage by way of “farkhati”. Under the
J&K Hindu Marriage Act 1980, marriage between Hindus can only
be dissolved by a decree of divorce in accordance with statutory
provisions, unless a specific custom is pleaded and strictly proved.
Mere execution of a settlement deed dated 28.08.1995, therefore,
could not by itself dissolve the marriage. In this respect, the
concurrent finding that customary divorce was not proved does not
call for interference.
21. However, the crucial question is distinct from dissolution of
marriage, namely, whether the petitioner established neglect and
refusal on the part of the respondent and whether she was living
separately for sufficient cause or by mutual consent. The law is
equally settled that if spouses enter into an agreement to live
separately on permanent basis and such agreement is acted upon,
Section 488(5) Cr.P.C. disentitles the wife from claiming
maintenance if she is living separately by mutual consent. Courts
have consistently held that even if such an agreement does not
amount to a valid dissolution of marriage, it can be relied upon to
ascertain the intention of parties and the nature of separation.
22. In the case at hand, the conduct of the petitioner assumes decisive
importance. She withdrew earlier proceedings after acknowledging
settlement. She did not seek restitution of conjugal rights. For
several years she did not claim maintenance for herself. In
subsequent proceedings she repeatedly asserted that she had been
divorced. The respondent, acting on that understanding, contracted
a second marriage. Though the petitioner initiated criminal
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proceedings under Section 494 RPC, those proceedings did not
culminate in conviction. These admitted facts indicate that the
parties had acted upon the settlement and were living separately on
the strength of that arrangement.
23. Even assuming that the marriage legally subsisted for want of
proof of custom, the petitioner cannot be permitted to approbate
and reprobate by asserting divorce in earlier proceedings and later
claiming desertion. The principle of estoppel by conduct would
operate against her. Her consistent admissions in judicial
proceedings that she was divorced and living separately disentitle
her from now asserting that she was deserted without cause.
Maintenance under Section 488 Cr.P.C. is conditional upon proof
of neglect or refusal, and where separation is by mutual consent,
the statutory bar under sub-section (5) applies.
24. In 1998 Criminal Law Journal 4749, where the wife had earlier
compromised her claim for maintenance by executing an
agreement and receiving a consolidated amount in lieu of future
maintenance, it was held, relying upon the Division Bench
judgment reported in 1990 MLJ 81 (Bombay High Court), that
once such an agreement was voluntarily entered into and acted
upon, the wife could not subsequently re-agitate a claim for
maintenance. The Trial Court having declined maintenance on the
strength of the agreement, and the Sessions Court having affirmed
the same, it was observed that no illegality or perversity was
committed by the Courts below.
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25. Similarly, in 2003 Vol. 2 Crimes 300, dealing with cases involving
execution of a farkhatnama (mutual separation agreement), the
Court held that the true nature of such a document must be
discerned from its language, intention and surrounding
circumstances. It was observed that where spouses execute an
agreement clearly expressing their intention to reside separately by
mutual consent, and such agreement has been acted upon with
appropriate provision for maintenance or settlement, the bar under
Section 125(4) Cr.P.C. would operate. Consequently, if separation
is by mutual consent, the wife would not be entitled to claim
maintenance from the date of such agreement, provided the
arrangement has been implemented in letter and spirit.
26. In Manju Ramchandani v. Manish Ramchandani, the High Court
of Madhya Pradesh examined a case where the Family Court had
recorded a finding regarding an agreement of dissolution of
marriage between the parties. The High Court clarified that a
marriage solemnized under the Hindu Marriage Act, 1955 can be
dissolved only by a decree of divorce under the Act, including by
mutual consent under Section 13-B. Although Section 29(2) saves
customary divorce, such custom must be specifically pleaded and
proved. The agreement relied upon by the husband could not
dissolve the marriage in absence of proof of custom. However, the
Court held that such agreement was admissible to show that the
parties were living separately by mutual consent. On appreciation
of evidence, the Court upheld the finding that the wife had left the
matrimonial home without sufficient cause and that both parties
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had agreed in a Panchayat to live separately. Consequently,
maintenance was denied under Section 125(4) Cr.P.C., and the
revisional jurisdiction was not invoked to interfere with concurrent
findings of fact.
27. Likewise, in “Dharampal v. Shakun Bai“, the High Court of
Chhattisgarh dealt with a case where the husband relied upon an
agreement evidencing mutual consent for dissolution of marriage
and full and final settlement of alimony. On factual appreciation,
the High Court concluded that the wife was not entitled to
maintenance, and the findings of the Family Court were neither
perverse nor illegal. The said judgment was carried in challenge
before the Hon’ble Supreme Court by way of SLP No. 7524/2019,
which came to be dismissed on 09.07.2024, thereby affirming the
view taken by the High Court.
28. Thus, from the aforesaid judicial pronouncements, the principle
that emerges is that while an agreement per se may not dissolve a
statutory marriage unless backed by a decree under the Hindu
Marriage Act or by a proved custom, such agreement is certainly
relevant to determine whether the parties are residing separately by
mutual consent. If it is found, on appreciation of evidence, that the
spouses have voluntarily agreed to live apart and the agreement has
been acted upon with due settlement of rights and liabilities, the
bar under Section 488(5) Cr.P.C. would disentitle the wife from
claiming maintenance thereafter. Conversely, if neglect and refusal
on the part of the husband is established and separation is not by
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mutual consent, the statutory right to maintenance would subsist
notwithstanding any informal arrangement.
29. The Sessions Court, while agreeing that customary divorce was not
proved, returned a finding that the parties were living separately by
mutual consent and that the petitioner had failed to establish
neglect or refusal. This finding was based on documentary record
and admissions of the petitioner herself. It cannot be characterized
as perverse or as an impermissible substitution of findings. Rather,
it represents a legally sustainable appreciation of conduct and
evidence within the permissible scope of revisional scrutiny.
30. Thus, although the marriage may not have stood dissolved in strict
legal sense, the petitioner’s long-standing conduct, admissions and
acquiescence demonstrate that she was residing separately by
mutual consent and not on account of proved neglect.
Consequently, the interference by the Revisional Court does not
appear to suffer from any jurisdictional error warranting further
interference.
31. There is no dispute to the fact that in terms of the agreement dated
28.08.1995, the parties got separated and in lieu thereof, the
respondent provided ₹10,000/- as lump sum alimony in the shape
of future allowance to the petitioner and thereafter until 2008, there
was no cause pleaded by her for either enhancement of that lump
sum allowance or to seek any remedy of grant of maintenance,
assuming that she continued to be the legally wedded wife
irrespective of the dissolution of the marriage dated 28.08.1995.
It is also an admitted case of the parties that after second round of
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litigation started in the year 2008, both the parties had in terms of
settlement dated 23.11.2013, agreed that the respondent would
provide ₹2.5 lac as final settlement. This appears to have been
based because at the time of initial settlement of 1995, the
respondent was unemployed and subsequently appeared to have
got appointed in Government service, thereby raising his financial
capacity. It was in that background, he agreed to pay ₹2.5 lacs,
though the same as per the petitioner could not materialize because
the respondent chose not to clear that liability, forcing her to
challenge the settlement by way of writ petition and subsequently
the order of mutual settlement was set aside. The said settlement
was not challenged by the respondent, in fact, challenge was
thrown by the petitioner, meaning thereby that the respondent too
had consciously felt that the earlier settlement of ₹10,000/- was too
meagre to satisfy the case of the petitioner and it was in that
background that he proposed to pay allowance of ₹2.5 lacs to the
petitioner. The Division Bench of this Court in case titled,
Vijay Kumari v. Ashwani Kumar (supra) has held that there was a
settlement between the parties, that resulted into consent decree of
divorce and the wife was allowed permanent alimony @ ₹1000/-
per month. After ten years, the wife moved an application to the
Matrimonial Court for enhancement of the alimony by taking
recourse to Section 31 of the J&K Hindu Marriage Act, 1980,
which application was declined by the Matrimonial Court and even
also rejected by the Single Bench of this Court and when the matter
landed before the Division Judge of this Court, it opined that wife’s
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right to future maintenance is a matter of public concern, which she
cannot barter away even if there is, inter-se, agreement between the
parties. In that background, it was held that she is entitled to
maintain an application for enhancement, as contemplated under
Section 31 of the J&K Hindu Marriage Act. Thus, the wife was
permitted to apply for enhancement of alimony.
32. Taking guidance from the aforesaid citation and bearing in mind
the pendency of the present petitions filed under Section 482 of the
Cr.P.C, this Court has already returned a finding that the
Revisional Court was justified in holding that the petitioner was
not entitled to maintenance under Section 488 of the Cr.P.C., as
she had been living separately by mutual consent, thereby
disentitling her from claiming maintenance in view of Sub-Section
(5) of Section 488 of the Cr.P.C. However, such a finding does not
absolve the Court from remaining conscious of the circumstances
and necessities which the petitioner may presently be facing. It is
borne out from the record that the petitioner has been living
separately since the year 1995 and had a son from the wedlock,
who is now stated to be married. The petitioner appears to have no
independent source of income and is stated to be dependent upon
the earnings of her son for sustenance. In the absence of any
legally recognized dissolution of marriage between the parties, the
civil status of the petitioner remains that of a legally wedded wife
of the respondent. Had the petitioner been vigilant in asserting her
rights at the appropriate stage, the agreement executed in the year
1995 would not have operated as an impediment in seeking
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maintenance from her husband. Such an agreement, even if
executed by consent between the parties, could not have the effect
of overriding the statutory entitlement provided under the law. It is
well settled that a private agreement cannot defeat or nullify the
operation of statutory provisions meant to secure maintenance and
prevent destitution, particularly when such arrangements may run
contrary to public policy.
33. It is precisely in this backdrop that Section 31(2) of the J&K Hindu
Marriage Act assumes significance, as the said provision
contemplates the possibility of changed circumstances over a
period of time, including escalation in the cost of living and the
inability of a spouse to maintain herself with the amount earlier
settled. The legislative intent behind such a provision is to ensure
that the economic realities faced by a dependent spouse are duly
addressed. Viewed in that perspective, the conduct and intention of
the parties in the subsequent round of litigation also assume
relevance. The respondent, who was earning, had agreed to pay an
amount of ₹2.50 lakhs in addition to the sum of ₹10,000/- already
paid in the year 1995, as a full and final settlement. Significantly,
the respondent never withdrew his consent to the said settlement.
The arrangement, however, failed to materialize on account of the
petitioner challenging the award of the Lok Adalat before this
Court on the ground that the amount had not been paid within the
stipulated time.
34. In order to advance the cause of justice and to prevent the
petitioner from falling into a state of vagrancy, this Court, while
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exercising its inherent jurisdiction to achieve substantial justice,
considers it appropriate to direct the respondent to pay a sum of
₹2.50 lakhs to the petitioner as a one-time settlement. The said
amount shall be paid by the respondent within a period of six
months from the date of receipt of a certified copy of this order. In
the event of failure to comply within the stipulated period, the
petitioner shall be entitled to recover the said amount along with
interest at the rate of 6% per annum until its realization in full.
35. As per the record, the respondent had already deposited an amount
of ₹1.50 lakhs, out of which a sum of ₹50,000/- has been released
in favour of the petitioner. As reported by the Registry, an amount
of ₹1,40,091/- is presently lying in the form of an FDR. The said
amount, along with the interest accrued thereon, shall stand
released in favour of the petitioner. The remaining balance, if any,
shall be paid by the respondent in the manner and within the time
frame indicated hereinabove. In view of the foregoing discussion,
the impugned order passed by the Revisional Court does not call
for any interference by this Court. Accordingly, CRM(M) No.
444/2020 stands dismissed. Consequently, CRM(M) No. 279/2021
also stands dismissed, having been rendered infructuous upon the
dismissal of the former petition.
36. Disposed off alongwith all connected applications.
(SANJAY PARIHAR)
JUDGE
JAMMU
06.03.2026
Ram Krishan
Whether the order is speaking? Yes
Whether the order is reportable? Yes
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