The respondent herein filed M.C. No. 119/76 under S. 125 of the Criminal P.C. (for short, the Code) against her erstwhile husband, the present petitioner and the same was dismissed on 8-5-1978 holding that the wife was living separately from the husband without reasonable cause and there was no neglect or refusal to maintain her on the part of husband. The petitioner thereafter filed O.P. No. 369/78 before the civil court for restitution of conjugal rights and restitution was ordered on 6-10-1978. The wife refused to go back to him and the petitioner filed O.P. No. 380/79 for divorce and divorce was granted on 31-10-1980. Thereafter the divorced wife, the present respondent, filed M.C. No. 42/81 claiming maintenance from the petitioner the applicant has herein under S. 125 of the Code. The learned Magistrate dismissed the petition on the ground that a fresh application under S. 125 of the Code could not be entertained in view of the dismissal of the previous application. The present respondent challenged this order in revision and the Sessions Court taking the contrary view, set aside the order of the learned Magistrate and remanded the case for disposal afresh in accordance with law. It is this order which is now challenged in revision.

2. Learned counsel for the revision petitioner would contend that the view taken by the learned Magistrate was correct and a fresh application between the same parties would not be competent and the remedy available to a divorced wife is to file an application under S. 127(2) of the Code. Learned counsel also placed reliance on the decisions in V. M. Awadhut v. Ratnaprabha Awadhut 1978 Cri. LJ 1406 (Born) and Balakrishnan v. Rajamma, 1979 Ker. LT 502.

3. In V. M. Avadhut's case there was an order directing payment of maintenance to the wife and child. She again filed a separate application alleging that the husband was not paying maintenance regularly. The second application was filed before another court. The proceedings were under the Code of Criminal Procedure, 1898. The Bombay High Court held that the second application was not maintainable and the remedy of the wife was to file an application for getting arrears of maintenance. The principle decided in the above decision has no bearing on the controversy in this case. The point decided in Balakrishnan's case (1979 Ker LT 502) was that on the dismissal on merits of an application under S. 125 of the Code, a fresh application may not lie because the earlier order would be final. This proposition also is not in issue in this case and does not help the revision petitioner.

4. The prior application under S. 125 of the Code filed by the present respondent was at a time when she was the wife of the present petitioner. Her claim was based on her status as a wife. As a wife she had a duty to reside with the husband and on her failure to do so, was expected to show sufficient cause for her refusal to live with the husband. Her refusal to live with the husband and her failure to show cause for such conduct led to the dismissal of the prior application. If while she continued to be the wife she had filed a second application, perhaps it could have been said that the second application would not lie. But she filed the second application only after the matrimonial court passed a divorce decree. At the time when she moved the second application, she was no longer the wife of the present petitioner. She had ceased to be his wife. It is only on the strength of the extended definition of the expression "wife" occurring in Explanation (b) to S. 125(1) of the Code that she is entitled to claim maintenance as a divorced wife. As a divorced wife she no longer has the duty to reside with her husband and therefore she is no longer required to reside with him and is no longer required to show cause why she refuses to live with him. In these circumstances the present application filed by her cannot be treated as a second application filed by the wife. N