A wife is entitled to maintenance from her husband under S. 125, CrPC, if she is unable to maintain herself, her husband has sufficient means to maintain her, and he has neglected or refused to maintain her. Living in adultery disentitles a wife to maintenance, but the burden of proving adultery lies on the husband.

G. B. PATTANAIK, J.

( 1 ) THE petitioner filed an application before the Judicial Magistrate First Class, Jajpur Road, claiming maintenance from the opposite party under S. 125, Criminal P. C. (hereinafter referred to as the "code" ). Her application having been rejected by the learned Magistrate, the present revision has been preferred. The petitioner alleges that she is the legally married wife of the opposite party and marriage between them having taken place on 5-7-1979 according to the Hindu rites. The opposite party neglected her as the dowry demanded by him could not be satisfied and ultimately the opposite party drove away the petitioner from his house and refused to maintain her. It was alleged that the opposite party has married again the daughter of one Dwija Nayak and has sufficient means to maintain the petitioner. The petitioner claimed maintenance at the rate of Rs. 200/- per month.

( 2 ) THE opposite party denies the allegations made in the petition and also avers that the petitioner is living in adultery and both of them are living separately by mutual consent. According to the opposite party, the petitioner was caught red-handed while she was having sexual relationship with one Natabar Beuria and thereafter she voluntarily left the house expressing her inability to stay with the opposite party and, therefore, she is not entitled to claim maintenance under S. 125 of the Code.

( 3 ) FOUR witnesses were examined on behalf of the petitioner and four witnesses were examined on behalf of the opposite party while a number of documents were also exhibited by either party. On consideration of the evidence on record, the learned Magistrate came to the conclusion that the story of the petitioner that dowry was demanded after marriage appeared to be improbable. He also held that the petitioner had failed to establish the allegation that the opposite party had married for the second time the daughter of Dwijabar Nayak. The learned Magistrate accepted the case of the opposite party and held that the petitioner is living in adultery and further petitioner could not prove the negligence or refusal on the part of her husband to maintain her and ultimately rejected the petition invoking the jurisdiction under sub-s. (4) of S. 125 of the Code.

( 4 ) THERE is no dispute that the petitioner and the opposite party married each other as alleged in the petition itself. Mr. Palit, the learned counsel appearing for the petitioner, contends that the impugned order of the learned Magistrate read as a whole would indicate that what has weighed with the learned Magistrate is the finding that the wife is living in adultery disentitling her to receive any allowance from her husband within the ambit of sub-s. (4) of S. 125 of the Code and that conclusion cannot be sustained in view of the evidence on record as well as the law on the point. The learned counsel further urges that there are sufficient materials on record to come to the conclusion that the opposite party has neglected and refused to maintain his wife and has sufficient means to maintain the wife and, therefore, the petitioner is entitled to receive maintenance. Mr. Jena, the learned counsel appearing for the opposite party, strenuously urges that this Court should not interfere with the finding of fact arrived at by the learned Magistrate in exercise of its revisional jurisdiction and further that the materials are sufficient to come to a conclusion that the wife is living in adultery disentitling her to claim any maintenance from the husband. In that view of the matter, the order of the Magistrate becomes unassailable.

( 5 ) IT is too well settled that S. 125 of the Code has been enacted with the object of enabling discarded wives, helpless and deserted children and destitute parents to secure the much needed relief. A speedier remedy has been provided for against starvation by way of a summary procedure. The provisions, in fact, give effect to the fundamental and natural d