A divorced wife is not automatically entitled to maintenance under Section 125 of the Criminal Procedure Code, 1973, without proving neglect or refusal to maintain by the husband.

JUDGMENT - M.S. DESHPANDE, J.:---This revision application by the husband is directed against the order passed by the Sessions Judge, Parbhani, reversing the dismissal of the respondent's application for maintenance and awarding Rs. 50/- per month as maintenance to her.

2. The respondent's case was that she was married to the petitioner about six years ago and resided with him for about 15 months, but he treated her with cruelty and drove her out of the house thus requiring her to reside with her brother. Several attempts to bring about reconciliation failed. The petitioner thereafter filed a petition for restitution of conjugal rights and obtained a decree against, though he never desired to take her to his house. He thus refused and neglected to maintain her. Contending that she was unable to maintain herself, while the petitioner had sufficient means to maintain her, she sought a direction against the petitioner for paying Rs. 250/- per month as maintenance. The petitioner resisted the application by urging that because of his desertion by the respondent, he had to bring a proceeding for restitution of conjugal rights and obtained a decree for restitution in 1977. Since that decree was not obeyed, he brought a petition for divorce and obtained a divorce against her. He denied his liability to pay maintenance.

3. The learned Magistrate found that the respondent had not proved that the petitioner had refused and neglected to maintain her and that though she was unable to maintain herself she was not entitled to maintenance. The learned Sessions Judge took note of the fact that a divorce had been obtained and that on that Court the respondent became entitled to ask for maintenance. He, therefore, awarded Rs. 50/- per month as maintenance to the respondent.

4. In this revision application by the husband petitioner the main point urged was that the status of being a divorce by itself could not invest the respondent with a right to seek maintenance in view of the provisions of section 125 of the Criminal Procedure Code, 1973. Under section 125(1) an order of maintenance can be made if any person having sufficient means neglects or refuses to maintain his wife and upon proof of such neglect or refusal, a Magistrate of the first class may order such person to make a monthly allowance for the maintenance of his wife. Under Explanation (b) to sub-section (1) of section 125, "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The eligibility of a wife to seek maintenance can arise only upon proof of neglect or refusal to maintain her. Sub-section (4) of section 125 provides that no wife shall be entitled to receive an allowance from her husband, 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.

5. On behalf of the respondent the provisions of sub-section (4) were relied upon and reliance was also placed on the observations of this Court in (Vinod Wamanrao Nehulkar v. Smt. Mangala Vinod Nehulkar)1, 1981 Bombay Cases Report 962 : 1 M.C. 148. But that case is clearly distinguishable on facts because the husband there filed a petition for divorce alleging that the wife was suffering from venereal disease in which the wife remained absent and the marriage was dissolved. Upon the wife's filing a petition for maintenance under section 125 of the Criminal Procedure Code, it was held that the wife was entitled to maintenance. The question of proving refusal or neglect before such an action could be brought, did not come up for consideration in that case. Reliance was also placed on a learned Single Judge's observation of this Court in (Balaji v. Parubai)2, 1983 Maharashtra Law Reporter 544 : 1984(1) Bom.C.R. 61. where it was held that under section 125 of the Criminal Procedure Code, 1973, a divorced wife is entitled to claim maintenance and this is the right which did not exis

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