A single act of adultery is not enough to refuse maintenance under Section 125, Cr. P. C. and the findings of the Civil Court with regard to adultery are not binding on the Court deciding the petition under S. 125, Cr. P. C.

L. MOHAPATRA, J.

( 1 ) IN this application under S. 482, Cr. P. C. the petitioner has challenged the legality of the orders passed by the courts below in a proceeding under Section 125, Cr. P. C.

( 2 ) AN application was filed by the opp. party for grant of maintenance under Section 125, Cr. P. C. for herself and her sons. The case of the opp. party is that she had married the petitioner as per Hindu rites and customs 15-16 years prior to the institution of the case and out of such wedlock 3 sons and 3 daughters were born. At the time of marriage the petitioner was a manual labourer in the coal mines and ultimately became a driver and was getting Rs. 5,000. 00 per month as salary. Being instigated by his colleagues, petitioner demanded Rs. 50,000. 00, a colour TV and a scooter towards dowry. Since the opp. party refused to request her parents for such dowry, ill feelings started between the parties and the opp. party was subject to torture. It is alleged in the petition that the opp. party was assaulted very often but she kept quiet for a long period. In the year 1995 petitioner filed O. S. No. 52 of 1995 in the Court of the learned Civil Judge (Sr. Divn.), Angul for a judicial separation on the ground of adultery committed by the opp. party. The opp. party appeared in Court on 21-12-1995 and was given an impression that the case has been withdrawn and left with the petitioner to stay together against at Bharatpur colliery residence at Talchar. Thereafter, the petitioner is alleged to have again started ill treating her on the plea of demand of dowry and forced her to vacate the house as a result of which the opp. party had to stay with her parents. Though the father of the opp. party tried to settle the matter amicably, he failed, on the above allegation and averments that the petitioner was getting Rs. 7,000. 00 per month at the relevant time and had an income of Rs. 10,000. 00 from the landed property, prayer was made for grant of maintenance @ Rs. 500. 00 per month.

( 3 ) PETITIONER in his objection though admitted the marriage, denied the allegation of demand of dowry. He also denied allegation of torture or ill treatment at any point of time. A specific plea was taken by him that the opp. party was living in adultery and the suit which had been filed on the aforesaid ground having been decreed, the opp. party is not entitled for maintenance. The specific case of the petitioner was that the opp. party was having sexual relationship with one Duria Naik in her village and the same was known to her father and brother.

( 4 ) CONSIDERING the respective cases of the parties and evidence on record, learned Magistrate allowed the application and directed payment of Rs. 400. 00 per month towards maintenance by judgment and order dated 14-10-1997. The said order was challenged in revision before the learned Addl. Sessions Judge, Angul by the petitioner and by judgment dated 25-9-1998 the revision was also dismissed.

( 5 ) SRI Rath, learned counsel appearing for petitioner submitted that there being a decree of the Civil Court with a finding of adultery by the opp. party, the present application under S. 125, Cr. P. C. should not have been allowed. The findings of the Civil Court arrived at in the said suit are binding on the Courts below and disentitles the petitioner from claiming any maintenance. Sri R. C. Rath, learned counsel for the opp. party on the other hand, submitted that the decree passed in the suit was an ex parte decree and an application under O. 9, R. 13, C. P. C. is pending consideration. Apart from that it is submitted that a single instance of adultery as alleged in the suit is not enough to prove that the opp. party was living in adultery continuously and accordingly, the courts below were justified in granting maintenance.

( 6 ) IN the light of the argument advanced by the learned counsel for parties, I think it desirable to look into the findings arrived at in the suit as well as in the present applicatio