N. Y. HANUMANTHAPPA, J.

( 1 ) THIS is are ference by our learned brother B. S. A Swcany, j. , seeking an authoritative pronouncement on the question whether the wife who deserted her husband onher own accord and suffered a decree of divorce under Section 13 (l)of Hindu marriage Act on that ground is entitled to claim maintenance under Section 125 of Code of criminal Procedure.

( 2 ) A few facts which are necessary to dispose of this revision case are:-

( 3 ) THAT the revision petitioner is the husband and respondent No. 1 is the wife. They will be referred be hereinafter as husband and wife. The marriage was solemnized on 7-9-1978 as per Hindu Rites in Peddachoutapally village in Cuddapah Mandal. They lived happlly for some time. As the wife did not beget children, the husband married again at the instance of his father. That led to the estrangement between the husband and the wife. The husband filed a divorce petition under section 13 (1) of Hindu Marriage Act in o. P. No. 59/1985 on the file of Subordinate judge, Cuddapah, on the ground that the wife deserted him for more than two years and the said petition was allowed granting divorce. The wife preferred an appeal to this Court in aao. No. 732/1987 against theorder of granting divorce, but the same was dismissed and the lower Court s order was confirmed. It is note worthy that the learned Subordinate Judge gave a finding in the aforesaid O. P. that the husband cannot escape the liabiility of maintaining his wife (divorcee) even though a divorce decree was granted. As far as this finding is concerned, This Court did not choose to interfere with the same and on the other hand it confirmed the same. Till July, 1991, the wife was said to be residing with her husband at peddach out apally village and subsequent to the orders of this Court confirming the decree of divorce, she was driven out of the house and thus, she was forced to reside with her brother in Ravindra Nagar. During the pendency of the divorce proceedings, the husband was paying an inter immaintenance of Rs. 350/-per month, but the same was stopped after the final orders were passed. As the wife was not in a position to earn anything, she filed an application under Section 125 of Code of Criminal procedure before I Additional Munsif magistrate, Cuddapah, which was numbered as MC. No. 4/1992. She alleged inter alia that herhusband was earning Rs. 3,500/-per month by way of salary and Rs. 10,000/- per annum from his lands and he also owns a house at peddach out apally. It is her case that the husband is bound to maintain her even though divorce was granted as she is not re-married and that the husband wilfully neglected to maintain her.

( 4 ) THE husband opposed the said application by denying his liability to maintain her on the ground that she is a divorcee pursuant to an order passed in a civil proceeding and she is not entitled for maintenance as she he reself deserted him and that he never neglected to maintain her. Itis further asserted that she was living with her brother by eking her livelihood by selling milk and hence she is not entitled for maintenance. It is also contended that when once the appeal filed by her, AAO. No. 732/1987 has been dismissed by this Court, he is not liable to maintain her. Regarding income it was stated that he was not getting so much income as is alleged by her and on the other hand he gets a monthly salary of Rs. 2,650/- out of which an amount of Rs. 250/- is deducted and he has no landed propertyorhouse. He added that he has to maintain himself, his aged parents and an unmarried sister.

( 5 ) DURING enquiry in MC. No. 4/1992, the wife examined herself as PW. 1 and examined another person as PW. 2 and got Exs. P-1 to p-4 marked while the husband examined him self as RW. 1 and got Ex. R-1 marked. On a consideration of the above evidence, the learned magistrate dismissed the application holding that she is not entitled for maintenance as divorce is granted on the ground that she he

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