JUDGMENT - R.G. VAIDYANATHA, J. :---This is a petition directed against the order dated 7-10-1988 on Exh. 1 in Criminal Application No. 50 of 1988 on the file of the Chief Judicial Magistrate, Sawantwadi, Dist Sindhudurg. Heard both the sides.

2. The first respondent-wife filed a petition for maintenance in the Court below under section 125 of the Code of Criminal Procedure.

The petitioner-husband filed an application Exh. 1 stating that the application is not maintainable since the marriage between him and the wife has been dissolved by a decree of divorce on the ground of adultery as per order dated 31-3-1986 in M.J. Petition No. 1132 of 1986 on the file of City Civil Court, Bombay. In view of the finding in that case that the wife is living in adultery, the wife is not entitled to maintenance.

After hearing both the sides, the learned Magistrate held that no order can be passed on the application till the parties adduce evidence regarding adulterous conduct of the wife and therefore, directed the husband to file written statement and that he will pass the orders only after both the parties adduce evidence. Being aggrieved by that order, the petitioner has come up with this petition.

3. The learned Counsel for the petitioner contended that in view of the finding in the divorce case that the wife is living in adultery and therefore, she is not entitled to claim maintenance as provided in section 125(4) of the Code of Criminal Procedure and that the order of the learned Magistrate calling upon the petitioner to file written statement and to adduce evidence is not sustainable in law. On the other hand, the learned Counsel for the first respondent supported the impugned order and contended that there should be clear evidence to prove that the wife is living in adultery and mere stray act of adultery is not sufficient even if it is found to be true. It was also argued that the decree in divorce case is an ex parte decree and the wife had not adduced evidence to prove her case.

4. Even if there is a valid decree for divorce, still, the wife is entitled to claim maintenance. In section 125 of the Code of Criminal Procedure, in Explanation (b) it is provided that wife includes divorced woman. Therefore, the fact that there is a valid decree for divorce by itself is no ground to deny the maintenance to the wife.

Section 125(4) of the Code of Criminal Procedure provides that wife is not entitled to maintenance from her husband if she is "living in adultery". In order to get the benefit of section 125(4) of the Code of Criminal Procedure, the husband has to plead and prove that the wife is living in adultery.

5. The husband has not even filed his written statement. Further he has not adduced any evidence regarding the adulterous conduct of the wife.

The only document produced is the ex parte judgment of the City Civil Court, Bombay in M.J. Petition No. 1132 of 1986 where no doubt, the Civil Court on the basis of the evidence of the petitioner held that the wife has given birth to a child due to illicit relationship with one Nagesh Gawade and on that ground granted a decree for divorce.

The Civil Court judgment does not show that the wife was living in adultery. A child can be borne even if there is a single lapse on the part of the wife in having illicit relationship with another man. Therefore, mere production of the Civil Court judgment may not by itself be sufficient without additional evidence to come to a positive conclusion that the wife is living in adultery.

The learned Counsel for the petitioner invited my attention to a case reported in (Shravan v. Anjanabai)1, 1985 Cri.L.J. 1213. In that case, the husband had pleaded that the wife is living in adultery. The husband's request for adjournment to adduce evidence on this point was rejected. This Court observed that the husband must have an opportunity to adduce evidence and remanded the case to the learned Magistrate. In fact during the course of the judgment, this Court has observe

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