A divorced wife is entitled to claim maintenance from her husband under section 125(1) of the Code of Criminal Procedure, 1973, even if the divorce was obtained by mutual consent and the wife is living separately from her husband.

JUDGMENT - G.M. KHANDEKAR, J.:---In this Criminal Application, I am called upon to interpret a benign provision in regard to the economic condition of neglected wives and discarded divorcees enacted in the Code of Criminal Procedure, 1973, namely, section 125. The Code of Criminal Procedure, 1973, will hereafter be referred to as "the 1973 Code".

2. It is common ground that the present petitioner, namely Balaji Kalbanade, and present respondent No. 1, namely, Parubai, entered into a legal marriage sometime in the year 1960 and they put an end to this marriage in the year 1970 by executing a deed of divorce. The deed of divorce came to be executed on 17-10-1970 and since then, respondent No.1 stands in the position of a divorcee. There is no dispute that respondent No. 1 has not remarried since the divorce.

3. The original petitioner who is respondent No.1 in this petition, alleged in the lower Court that she used to maintain herself by doing labour work, but since about six months prior to the date of filing her maintenance petition in the lower Court, she was sick and was unable to maintain herself. She alleged that her husband, that is the petitioner in this petition, was earning Rs. 3,000/- per annum by way of salary and was also getting an income of Rs. 1,000/- from his agricultural property and thus, he possessed sufficient means. Since she was unable to maintain herself, she filed this petition for maintenance under section 125(1) of the 1973 Code claiming maintenance allowance at the rate of Rs. 200/- per month.

4. The petition was resisted by the husband-original opponent by his say at Exh. No. 8 in the lower Court, in which he admitted that the applicant was his divorcee and that the relationship of husband and wife between them came to end since the time of divorce deed dated 17-10-1970. He however, contended that the applicant was maintaining herself on the earnings as a labourer and by keeping illicit relations with others and, therefore, being of a bad character, she was not entitled to maintenance. He also denied that the applicant was sick and that she was unable to maintain herself. It was his specific plea that when the divorce took place in 1970, both the parties had agreed that none of them would proceed against each other and he had also paid a sum of Rs. 1,500/- to the applicant by way of maintenance and hence she had no right to claim any maintenance from him. He denied that he was getting the salary of Rs. 3,000/- per annum and that he had any income from his agricultural land. He further contended that he was getting only Rs. 100/- per month as salary and as such he could not maintain the applicant within such a small salary even though she was held entitled to maintenance.

5. The original petitioner, that is, Parubai, examined herself in support of her application for maintenance, while the opponent examined himself and one more person by name Maruti Gokul Pirane on the point of illicit connections between applicant Parubai and one Devidas a driver. On considering the evidence on record, the learned Judicial Magistrate First Class, Amdabad, held that the applicant was able to maintain herself and as such she was not entitled to claim any maintenance from her husband. He also negatived the plea of the opponent-husband that Parubai was living in adultery,. With these findings, he dismissed the petition leaving the parties to bear their own costs by his order dated 30th May, 1981 recorded in Miscellaneous Application No. 31 of 1980.

6. The applicant feeling dissatisfied with this order of the learned Magistrate carried a revision to the Sessions Court at Jalna, which was registered as Criminal Revision Application No. 79 of 1981. After hearing both sides, the learned Sessions Judge, Jalna, held that the applicant was unable to maintain herself and that she was entitled to claim maintenance from the husband, that is, Balaji. He negatived the contention of the opponent that the petitioner was living in adulter

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