A.V. SAVANT, J.:---Heard all the learned Counsel : Mr. S.V. Kotwal for the petitioner-husband : Miss. Smita Mane for respondent No. 1 wife and Mr. D.N. Salvi, A.P.P. for respondents No. 2 State.

2. This petition has been placed before us pursuant to the order passed by learned Chief Justice as a result of the order dated 19th April, 1995 passed by G.R. Majithia, J., since the learned Judge thought that the view taken by the Division Bench of this Court in the case of (Sharadchandra Satbhai v. Indubai Satbhai)1, 1978 Mh.L.J. 123 required reconsideration in view of the decision of the Apex Court in the case of (Bai Tahira v. Ali Hussian Fissalli Chothia)2, 1979 Mh.L.J. 95 S.C. : A.I.R. 1979 S.C. 362. Majithia, J., observed that the question as to whether a divorced wife has a right to claim maintenance under section 125(1) of the Code of Criminal Procedure, 1973 was important. He, therefore, directed the office to place the matter before the learned Chief Justice. Consequently, the matter has been placed before us for final hearing.

3. In the facts of the case before us the short question which arises for our consideration is whether the first respondent wife against whom the petitioner has obtained a decree for divorce is entitled to get maintenance under section 125 of the 1973 Code. The question really revolves around the interpretation of Clause (b) of the Explanation to sub-section (1) of section 125 of the Code. Section 125 reads as under :

"125. (1) If any person having sufficient means neglects or refuses to maintain

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself.

A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct;

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation:- For the purpose of this chapter.

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained majority :

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due :

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is sa