1. Rule. Rule made returnable forthwith. By consent of the learned counsel for both parties, this petition is taken up for final hearing.

2. The respondent No. 2 filed an application for maintenance under the provisions of section 125 of the Code of Criminal Procedure, bearing Criminal Misc. Application No. 38/2015 before Judicial Magistrate, First Class, Badnapur, District Jalana.

3. It is contended that, respondent No. 2 married with petitioner on 23.01.1993. Respondent No. 2 residing happily with the petitioner for about two months, however, thereafter the petitioner started ill-treatment. Therefore, she started to reside with her parents. It is further contended that, the petitioner has not made provision of maintenance of respondent No. 2. Furthermore, the petitioner has performed second marriage.

4. The petitioner appeared in the Trial Court and submitted his say and has admitted the marriage with respondent No. 2. However, he has denied almost all remaining contents of the petition. It is the specific case of the petitioner that there was divorce between him and respondent No. 2 on 13.08.2004 and the respondent No. 2 has relinquished her right of maintenance and since the date of divorce i.e. 13.08.2004, respondent No. 2 is residing at her parents house on her own will. So according to petitioner the respondent No.2 is not entitled to claim maintenance in view of the divorce and the fact that the parties are residing separately by mutual consent from the date of divorce.

5. Respondent No. 2 filed her oral evidence by way of affidavit (Exh.11). In addition to that she examined her cousin brother at Exh. 19. As against this, the petitioner did not enter into the witness box, however, examined one witness Sudhakar Bodhgire to prove the divorce deed (Exh. 14).

6. Besides the oral evidence of the parties, reliance is placed by the petitioner on documents i.e. divorce-deed (Exh. 14), 7x12 extracts (Exh. 15 & 16), copy of sale-deed (Exh. 17), registration certificate of two-wheeler vehicle (Exh. 18), to contend that the respondent No. 2 is having sufficient means to maintain herself.

7. Considering the evidence on record and after hearing both the sides, learned Judicial Magistrate First Class, Badnapur, has allowed the application on 06.08.2016 and awarded amount of maintenance at the rate of Rs. 1500/- per month from the date of application i.e. from 11.03.2015 together with costs of Rs. 2000/-. That order was assailed before the learned Sessions Judge, Jalna by filing Criminal Revision Application No.113/2016. The same was rejected after hearing both the sides.

8. I have heard the arguments of Mr. Mantri, learned counsel for petitioner and Mr. Patil, h/f Mr. Gaikwad, learned counsel for respondent No. 2.

9. Mr. Mantri, learned counsel, during the course of arguments submitted that after the marriage, the respondent No. 2 resided with the petitioner for a few months and thereafter she left the house of the petitioner and she was started to reside at her parents house and she is looking after her parents. Mr. Mantri, learned counsel, further argued that there was divorce between the parties and its deed was registered before the Sub-Registrar. At the time of execution of the divorce-deed the respondent No. 2 relinquished her right of maintenance. Therefore, now the respondent No. 2 is not entitled to claim any maintenance. He further submitted that since the petitioner and the respondent No. 2 are residing separately, with mutual consent, since the date of the divorce, therefore, the respondent No. 2 is not entitled to claim maintenance in view of the provision of Section 125 subsection 4 of the Code of Criminal Procedure, which runs as follows :

“No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her h