A wife living in adultery is disqualified from claiming maintenance under Section 125 Cr.P.C., requiring proof of a continuous adulterous relationship.

ORDER :

ANIL KUMAR UPMAN, J.

1. The instant criminal revision petition under Section 397 read with Section 401 Cr.P.C, has been filed on behalf of the petitioner/non-applicant assailing the order dated 21.07.2005 passed by learned Additional Sessions Judge, Dholpur in Criminal Revision No.150/2004 whereby the learned Revisional Court allowed the revision petition filed by respondent/applicant and set aside the order dated 19.01.2002 passed by learned Chief Judicial Magistrate (Senior Division Dholpur) in Criminal Misc. Case No. 50/1994, rejecting the application filed by the respondent/applicant for recovery of maintenance and did not held her entitle for maintenance w.e.f. 26.07.1995.

2. Brief facts of the case are that the respondent/applicant moved an application under Section 125 Cr.P.C on 25.11.1992 before the concerned Judicial Magistrate for maintenance against the petitioner/non-applicant on the ground of cruelty and desertion. The petitioner/non-applicant filed reply to the said application and denied the averments made therein. On account of absence of the petitioner before the learned trial court, ex-parte proceedings were initiated in the matter. Vide order dated 03.03.1994, the learned trial court allowed the application of respondent/applicant and directed the petitioner to pay maintenance to the tune of Rs.300/- per month from the date of the application i.e., 25.11.1992.

3. In the proceedings of recovery of maintenance, initiated by the respondent/applicant, on 01.07.1997, the petitioner moved an application under Section 127(3) Cr.P.C., with the averments that since the respondent/applicant entered into second marriage with one Rakesh Kumar and gave birth to a female child on 26.07.1996, she is not entitled for maintenance any further. The respondent/applicant filed response to the said application filed on behalf of the petitioner and denied the averments of second marriage as well as the factum of birth of female child. The learned Magistrate after hearing arguments of both the sides, vide order dated 06.11.1998 allowed the application of the petitioner/non-applicant and held that the respondent/applicant is entitled for maintenance only upto 26.07.1995.

4. The non-petitioner/applicant challenged the order dated 06.11.1998 by way of filing the revision petition (No.46/2000) before the learned Revisional Court. The learned Revisional Court vide its order dated 19.04.2001 set aside the order dated 06.11.1998 and remanded the matter to the learned Magistrate with direction to decide the application afresh as per law after providing opportunity to the parties to lead their evidence on the application dated 01.07.1997 filed by the petitioner/non-applicant. In compliance of order dated 19.04.2001 passed by the learned Revisional Court, the learned Magistrate on the application filed by the petitioner/non-applicant allowed both the parties to adduce their evidence. The petitioner/non-applicant adduced oral as well as documentary evidence in support of his case.

5. Vide order dated 19.01.2002, the learned Magistrate held that the petitioner/non-applicant had proved his case that respondent/applicant gave birth to a female child on 26.07.1996 from the relations with one Rakesh Kumar and therefore, she was not entitled for any maintenance from the petitioner with effect from 26.07.1995. Thereafter, the respondent/applicant again filed a criminal revision petition before the learned Sessions Judge Dholpur and challenged the order dated 19.01.2002 passed by the learned Magistrate. Vide order dated 21.07.2005, the learned Revisional Court accepted the revision petition filed by the respondent/applicant and set aside order dated 19.01.2002 passed by the learned Magistrate. Hence this revision petition.

6. Learned counsel for the petitioner/non-applicant vehemently argues that the order dated 21.07.2005 passed by the learned Revisional Court is absolutely illegal and perverse and therefore the same is liable to be set aside. He f