A divorced wife is entitled to maintenance under section 125 of the Criminal Procedure Code, unless she is living in adultery or refuses to live with her husband.

JUDGMENT - S.K. DESAI, J.:---This application is preferred against the order of the learned Additional Sessions Judge, Ahmednagar given in Criminal Revision Application No. 71 of 1979. By the impugned order he dismissed the revision application. The revision application was from the decision of the learned Judicial Magistrate (First class), Sangamner in Criminal Miscellaneous Application No. 22 of 1977. A few facts may be stated. Matrimonial Petition No. 249 of 1977 was filed by the revision petitioner before me as the petitioner against his wife seeking dissolution of marriage. The marriage took place on 14th December, 1975. The parties stayed together till 4th August, 1976 on which date the respondent left the matrimonial home. However, according to the allegations in the matrimonial petition which were confirmed in evidence by the husband. The respondent resisted attempts for consummation of marriage. Medical examination of the respondent wife thereafter took place and on such medical examination the doctors opined that she was suffering from, what is now designated as a sexually transmitted disease (originally general disease). Although such serious allegations were made in the petition the respondent wife chose to remain absent. The allegations do not appear to have been disputed by proper pleading and the husbands evidence remained uncontroverted. After considering the husbands evidence and on perusal of the medical certificates which were produced before him, the then Additional Principal Judge, of the City Civil Court dissolved the marriage on 23rd June, 1977.

2. There is provision in the Hindu Marriage Act enabling even a respondent wife to apply for maintenance but the wife did not apply for maintenance either pendente lite or permanent maintenance. Obviously this was because this was a matter in which the Court may have rejected the application. From the facts averred by the husband and accepted by the matrimonial Court it is clear that this was a marriage only in name and the wife or rather wifes father had played a fraud to get this woman married although she was suffering from this disease even at the time of marriage and was, therefore, unable to consummate the same.

3. The wife had however, preferred an application for maintenance under section 125 of the Criminal Procedure Code, although, for obvious reasons, did not apply for maintenance in the matrimonial proceedings. Under section 125 of the Criminal Procedure Code after 1973, wife now includes divorced wife. The only bar to be found on the wife being granted maintenance is the bar contained in section 125(4). Since the marriage has been dissolved by a decree of divorce. There is no question of the wife living in adultery or the wife refusing to live with the husband, the latter because no divorce wife can be compelled to stay with erstwhile husband. In other word, despite the fact that she was a guilty party in the matrimonial proceedings she became entitled as the divorced wife to receive maintenance under section 125 of the Criminal Procedure Code. The only thing which was required to be considered by the Court was whether there was any express bar on the grant of maintenance. No such bar is provided by the legislature and the trial Court was, therefore, obliged only to consider the aspects provided under section 125.

4. The learned Judicial Magistrate, Sangamner (Shri B.P. Kamble) has, however, made certain extraordinary statements in the course of his order. There are to be found in paragraph 7. The only thing correct in this paragraph is the last observation, namely, about it not being proved that the applicant is living in adultery. The reasons given by the Judicial Magistrate earlier in the para for rejecting the medical evidence is before the matrimonial Court and the basis for his conclusions are absurd, improper and must be regarded an as abuse of judicial power. It was totally unnecessary and equally impermissible to indulge in this speculation. Ho

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