S.125(4) applies only to the female spouse in a subsisting marriage, and 'living in adultery' requires proof of present conduct.

1. This revision is against an order passed by the Judicial Magistrate of the First Class, Kodungalloor in a petition under S.125 of the Code of Criminal Procedure for the award of maintenance moved by a divorced woman and her 3 children. The Magistrate found that the children are eligible to get maintenance at the rate of Rs. 45/-, Rs. 35/- and Rs. 30/-per mensem respectively while the first petitioner the divorcee was not entitled to any maintenance. This was so found because, according to the court below, adultery on the part of the first petitioner had been proved by the evidence in the case and that disentitled her to the award of any maintenance. This revision comes up before the Full Bench because a single judge of this Court directed reference to the Full Bench in view of the important questions arising for decision in the case.

2. The revision is by all the petitioners in the court below. The first petitioner claims that she too must be found entitled to maintenance until her remarriage while on behalf of petitioners 2 to 4 she claims enhancement of the quantum of maintenance awarded by the court below.

3. Evidently the learned Magistrate who declined to award maintenance to the first petitioner on the ground that she was living in adultery, was relying on S.125 (4) of the Code of Criminal Procedure. The questions before us as urged by learned counsel Sri. P. V. Ayyappan, appearing for the petitioners are (!) whether S 125 (4) would be applicable to the case of a woman who had been divorced or whether it is applicable only to the female spouse in a subsisting marriage and (2) whether the words "is living in adultery" in S.125 (4) should be taken to indicate that proof must be not of any past conduct but of the present.

4. S.125 of the Code of 1973 has to some extent altered the scheme of maintenance envisaged in the corresponding S.488. Under the repealed Code it is only the 'wife' as the term is generally understood the female spouse in a subsisting marriage-that could seek maintenance from the husband. But S.125(1) of the new Code obliges a person who refuses or neglects to maintain a woman who was his wife and who had been divorced to maintain her if she is unable to maintain hereself. Such obligation is to last until she remarries. The scope of of the term wife is enlarged to take in the case of such a woman and this is by Explanation (b) to S.125 (1). Explanation (b) to that sub-section reads thus:

"Explanation For the purposes of this Chapter, (a)...

(b) "wife" includes a woman who has been divorced by, has or obtained a divorce from, her husband and has not remarried."

5. The effect of the Explanation is evidently to read the term wife in Chapter IX of the Code as meaning not only the wife as generally understood but also a woman who has been divorced but who has not remarried. It may be noticed that S.125 (1) deals with the obligation of a 'person' and not of a husband or of a father or of a son. The scope of the explanation is not to create a jural relationship between the divorced woman and the erstwhile husband. No new obligation outside the scope of the Code is sought to be imposed either on the divorced woman or her erstwhile husband by reason of the Explanation. The object of the Explanation is only to enable such a divorced woman to claim maintenance from her erstwhile husband until her remarriage. The very object of the provision in S.125 of the Code is to provide for a minimum obligation on the part of a person to maintain his wife, children, parents and his divorced wife who is not remarried under certain circumstances. In regard to some of his dependants there may be a similar obligation under the civil law, but in awarding maintenance in civil proceedings considerations other than those which arise in the matter of a petition under S.125 of the Code may arise. The quantum of maintenance may also differ in such proceedings. The provision in S.125 is intended as a measure to prevent vagrancy an