IMPORTANT POINT
The term "Living in, adultery" appearing in section 125(4) of Criminal Procedure Code means the wife is habitual in committing acts of adultery & solitary act of adultery or an isolated lapse on the part of wife would not disentitle her to claim maintenance.

JUDGMENT

Phani Bhushan Prasad, J. - This application under sections 397 and 401 of the Code of Criminal Procedure is directed against the judgment and order dated 15.2.1989 passed in Misc Case No. 53/84 TR. No. 773/88 under section 125, Cr.P.C. by Shri N.K. Prasad, Judicial Magistrate, 1st class, Gaya, by which the learned Magistrate has ordered the petitioner to pay a sum of Rs. 200/- per month to the Opposite party towards her maintenance.

2. The Opposite party Smt Manika Roy, who claims to be the wife of the petitioner, filed an application in the Court below under section 125 Cr.P.C. for maintenance. From the said application, it appears that the Opposite party is the legally wedded wife of the petitioner. The case of the Opposite party is that the petitioner wanted to marry another lady to which the Opposite party objected and she filed a Suit in the Court of Munsif, Gaya. In the trial Court as well as in the Appellate Court the Opposite party won the case. The petitioner came to this Court in Second Appeal and here he lost the case. It appears that all the Courts gave concurrent findings that Opposite party is the legally wedded wife of the petitioner. It appears that after the institution of the case, the petitioner neglected her and refused to maintain her. Her further case is that she is living with her mother, who is a trained nurse and is a low-paid employee and, as such, it is not possible for her mother to maintain her (Opposite party). Further case of the Opposite party is that her husband (petitioner) used to visit her off and on and consequently a male child was born to her four months before the filing of the application under section 125 Cr.P.C. Her grievance is that the petitioner neglected her and refused to maintain her and her newly born child. She prayed for a sum of Rs. 500/- per month towards maintenance.

3. After the filing of the aforesaid case, the petitioner appeared and filed show cause. He challenged the maintainability of the application and further agitated that the applicant is not the legally wedded wife of the petitioner. According to him the Opposite party is a lady of questionable character. The petitioner further denied to have ever visited her after the institution of the case and according to him the child, which was born to the Opposite party is not the son of the petitioner. He claimed that the Opposite party is living in adultery. According to him since the Opposite party is not loyal to the petitioner, she is not his legally married wife and does not deserve maintenance.

4. In the Court below both parties adduced evidence in support of their respective case. The trial Court, on consideration of evidence adduced on behalf of both parties accepted the case of the Opposite party and consequently ordered for payment of maintenance at the rate of Rs. 200/-per month to the Opposite party.

5. On behalf of the petitioner, it has been contended that since the Opposite party is living in adultery, she is not entitled to any maintenance for which he has drawn the attention of the Court 10 section 125(4) Cr.P.C., which runs as follows:

"125(4) No wife shall be entitled to receive an allowance from her husband under this section 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."

Learned counsel for the petitioner further I contended that from the evidence of Applicant Witness no. 2, it appears that after the institution of the case, the petitioner never visited the Opposite party and as such, the child, which was born to the Opposite party is not the son of the petitioner.

6. On behalf of the Opposite party, argument has been advanced that there is no reliable material on the record to hold that the Opposite party was living in adultery, According to the learned counsel, in absence of such evidence, the petitioner is bound to maintain the Opposite party. It has also been argued that the Op