A divorced wife is entitled to maintenance allowance from her ex-husband till her remarriage, if she leads a chaste life.

1. This revisional application is directed against an order dated 29-11-1980 passed by the learned Judicial Magistrate, Suri in Misc. Case No. 27 of 1975 granting maintenance allowance at Rs. 75/- per month to the opposite party in a proceeding under Section 125 of the Criminal P.C., 1973.

2. The opposite party applied under Section 125 of the Code before the learned Magistrate alleging that she was married to the petitioner on 16th Magh 1373 B. S. according to Hindu rites and had a son out of the wedlock who died soon after birth, that as she did not give birth to any child thereafter, she was ill-treated by her husband and mother-in-law that ultimately on 1st Bhadra 1379 B. S. she was taken by her husband to her parent's house and left there, that thereafter the husband did not attempt to take her to his house or arrange for her maintenance, and that he has married again one Lakhmi Dassi. It was further alleged that the opposite party had no means to maintain herself and that her husband had sufficient properly and income to pay her maintenance allowance at Rupees 100/- per month.

3. The petitioner husband contested the application alleging that the wife left his house without any lawful excuse and deserted him that he has obtained a decree of divorce on the ground of desertion in Matrimonial Suit No. 27 of 1976 that Lakhrri Dassi is a cook in his house and not his second wife and that the husband is a manual labourer for catching fish without any landed property.

4. The learned Magistrate has found from the evidence that as no child was born to the opposite party wife after the death of her first child her husband and mother-in-law ill-treated her, that the husband never went to the wife's parent's house to bring her to his house nor did he provide for her maintenance since Bhadra 1379 B. S. and that although the hushand's second marriage with Lakhmi Dassi has not been proved, his relationship with the said woman said to be the cook of his household is rather mysterious. The learned Magistrate has found that in spite of the decree for divorce obtained by the husband during the pendency of the maintenance proceeding the divorcee is entitled to get maintenance from her husband as she is unable to maintain herself and the husband who deposited Rs. 2000/- in the matrimonial suit towards the alimony pendente lite has capacity to pay maintenance at Rs. 75/- per month to the wife.

5. In challenging the order of the learned Magistrate it has been submitted on behalf of the petitioner husband that in view of the judgment and decree for divorce passed on 24-1-1979 by the learned Additional District Judge, Bribhum in Matrimonial Suit No. 27 of 1976 brought by the husband dissolving his marriage with the opposite party wife on the ground of desertion for over two years before the suit, the learned Magistrate was not justified in making the impugned order granting maintenance to the wife. It is argued that the aforesaid judgment of the Matrimonial court is a judgment in rem and binding on all persons as it has been held in AIR 1975 SC 105 : (1975 Cri. LJ 52) and that it is not correct to hold that the finding as regards the ground for granting divorce is not binding on the criminal court. Reference has been made to the decision reported in AIR 1957 All 658 : (1957 Cri. LJ 1052) that the principle of res judicata applies as pro-ceedings under Section 488 of the old Code are of quasi civil nature. The learned Advocate for the opposite party has sought to repel these contentions.

6. After considering submissions made on behalf of the parties and the materials on record I find that there is no sufficient ground to interfere with the impugned order of the learned Magistrate. Section 41 of the Evidence Act provides, inter alia, that the judgment and decree of the matrimonial court is conclusive proof that any legal character which it takes away from any person ceased at the time from which such judgment or decree declared that it had ceas