ORDER (ORAL)

Thisrevisian has been preferred against the order dated 06. 11.2001 passed by IX Addl. Sessions Judge. Indore in Cri. Revision No. 498/01 thereby setting aside the order of grant of interim maintenance passed in Misc. Cri. Case No. 39/2000 an 12.07.2001 by the Judicial Magistrate First Class. Indore Shri N.G. Gadha.

2. Necessary facts far disposal of this revision are that the applicant-wife had filed an application under Section 125 of the Code of Criminal Procedure far grant of maintenance alleging that after the marriage she was ill treated far demand of dowry and the Nonapplicant-husband deserted her with out any valid reason. The applicant wife is compelled to live with her mother. She has no source of income to maintain her whereas the Nan-applicant-husband Heeralal is a business man having a Kirana -stare and is also doing the work of Commission Agent. She has demanded Rs. 3.000/- per month as maintenance and filed a separate application far interim maintenance. According to the applicant wife the Nan-applicant-husband earns Rs. 10.000/- per month. The application was supported by affidavit.

3. The non-applicant in reply submitted before the trial Court that the applicant Renu of her awn voluntarily residing separately. He wants to keep and live with her far which he had filed a suit far restitution of conjugal rights which was decreed ex parte in favour of the Nan-applicant husband but the applicant-wife is not complying with the judgment and decree of Restitution of Conjugal Rights. He has also submitted that the applicant-wife is earning fifty to one hundred rupees a day by doing tailoring work and she is able to maintain herself whereas he is doing service and getting total emoluments of Rs. 1.000/ - per month. He has no additional source of income. Along with the reply he submitted affidavit and also the documents and decree regarding Restitution of Conjugal Rights.

4. The Trial Court after considering the rival contentions granted interim maintenance at the rate of Rs. 500/- per month. Aggrieved by this order the Nan-applicant-husband went up in revision which was allowed setting aside the order of interim maintenance an the ground that the trial Court has failed to see that the applicant-wife has neglected the non applicant-husband without any rhyme and reason. The trial Court has passed the order of maintenance only an the ground that the parties are having relations as husband and wife without considering the documents filed by the husband-non-applicant regarding decree of Restitution of Conjugal Rights passed in Case No. 85-A/99 dated 28.09.99 and thereafter. execution proceedings filed thereon. In the said execution proceedings also the wife applicant did not appear. Against this order this revision has been preferred by the applicant wife.

5. The contention of the learned counsel far the applicant-wife is that even after obtaining the ex parte decree of Restitution of Conjugal Rights the Non-applicant-husband would not be absolved from his responsibility to maintain the applicant. He further contended that when under Section 125 of the Code of Criminal Procedure Sub Section (1) Explanation-B, a divorced wife has a right to claim for maintenance till for remarriage. The wife against whom, the decree of Restitution of Conjugal Rights has been passed by the Civil Court is required to consider her claim independently on the basis of the evidence adduced by the parties without being influenced by the decree of Restitution of Conjugal Rights, that too passed ex parte. In support of his contention he relied upon a judgment rendered by this Court reported in (Babulal v. Sunita1).

6. Learned counsel for the Nonapplicant-husband has submitted the copy of the order-sheet showing the fact that before the trial Court the husband had made a serious endeavour to take the applicant-wife with him and also shown his willingness to maintain her, but the wife has denied it straightway saying.

7. The ratio decided i