What is the effect and consequences of a decree for judicial separation under Sec.22 of the Indian Divorce Act (for short `the Act)? What impact, does such a decree have on the subsequent claim of a wife for maintenance under Sec.125 Cr.P.C.? These questions arise for consideration in this RP (FC).

2. On basic facts, it appears that there is no dispute. The petitioner and the respondent are spouses. Their marriage took place on 2/9/1979. A child was born in the wed-lock. That child has already attained majority. The spouses started separate residence from 15/7/1980. The husband filed an application for divorce on the ground of cruelty. That was dismissed. Later, he filed an application for decree of judicial separation. That was also rejected. He renewed his prayer for a decree for judicial separation and the same was allowed later by order dated 10/4/96. Decree was granted for judicial separation. But there was a direction that the respondent/ husband must pay an amount of Rs.750/-each per mensem to the wife and their minor daughter. An appeal was preferred and by judgment dated 4.97 in M.F.A.No.697/96 the direction to pay maintenance to the wife was set aside as agreed. But it was observed that "it was agreed between the parties that the disposal of the appeal will not prejudice the right of the respondent/wife to claim maintenance separately under Sec.125 Cr.P.C."

3. It was thereafter that the present claim for maintenance was filed by the wife. She claimed an amount of Rs.500/- per mensem as maintenance.

4. This application was opposed by the respondent/ husband. He contended that in the light of the decree for judicial separation which has become final, he is not liable to pay any maintenance. Significantly, as I shall later advert to, there was no offer to maintain the wife on condition that she lives with the husband. Parties went to trial on these contentions. The claimant/wife examined herself as P.W.1. She proved Exts.P1 to P3. Ext.P1 is a copy of the petition filed by the husband for judicial separation. Ext.P2 is the order passed by the Division Bench dated 4.97 in M.F.A.No.697/96. Ext.P3 was introduced in evidence by the claimant/wife in support of a contention which she raised when examined as a witness that the respondent – her husband has married again and has begotten a child in that marriage. Ext.P3 is the copy of the birth certificate of the child so born in that alleged subsequent relationship. The husband did not adduce any evidence. Significantly he did not attempt to explain Ext.P3.

5. Thelearned Judge of the Family Court by the impugned order took the view that the wife is not entitled for maintenance she having already been held to be guilty of the matrimonial indiscretion of desertion and the husband having already secured a decree for judicial separation on the basis of such matrimonial misconduct on the part of the wife. Accordingly, the learned Judge of the Family Court proceeded to dismiss the claim for maintenance under Sec.125 Cr.P.C.

.6. Thelearned counsel for the petitioner assails the impugned order on various grounds. It is contended that the securing of a decree for judicial separate reveals that the husband was not interested in cohabitation. Such a husband cannot later on turn round and advance a contention that the wife is residing separately without just or sufficient cause. The decree for judicial separation is itself sufficient cause. The absence of any offer to maintain her convincingly justifies the separate

.residence. Ext.P3 confirms the husbands remarriage and birth of a child in such subsequent marriage. It is, in these circumstances, contended that even accepting all the contentions, the claimant/wife is entitled for maintenance.

7. The learned counsel for the respondent, on the other hand, contends that it having already been concluded by a decree of a competent civil court that the wife is guilty of the matrimonial misconduct of desertion and the husband having alr