A divorced wife is entitled to maintenance under Section 125, Cr. P. C., despite the divorce, if she is unable to maintain herself and the husband has neglected to maintain her, and she has not remarried or surrendered her right to maintenance or is not living in adultery.

( 1 ) SMT. Pushpa Mishra who claims to be the wife of Madhusudan Mishra started proceedings under Section 125, Cr. P. C. through a petition which was numbered as 178/12 of 1983. Her contention was that since 1973 her husband Madhusudan Mishra had neglected to maintain her and she is unable to maintain herself. The husband is living with another woman. He has an income of not less than Rs. 1000/- per month and, therefore, she claims maintenance to the extent of Rs. 500/- per month.

( 2 ) CONTEST was put by Madhusudan Mishra and he took the stand that Smt. Pushpa Mishra who was his married wife herself left him and thus caused a desertion and in spite of a decree for restitution of conjugal rights she did not return and ultimately he had to obtain a decree of dissolution of marriage by way of divorce and now she is not entitled to any maintenance from him. It was also said that she was a double M. A. and had been a teacher for some time while now she is working as Manager in an Educational-Institution and was capable of earning her own livelihood and so also she was not entitled to any maintenance allowance.

( 3 ) LASTLY, it was contended that his income is hardly Rs. 700/- per month and he has to look after a family of seven members including aged mother, sister and her two children and an insane brother-in-law and, therefore, also he was not in a position to pay anything.

( 4 ) THE matter came up before Mr. Shyam Vinod, VIIth Munsif-Magistrate, Farrukhabad and after recording evidence on 13-10-1983 he granted to Smt. Pushpa Mishra a maintenance amount of Rs. 200/- per month from the date of his judgment. Against this order the present revision has been preferred by Madhusudan Mishra.

( 5 ) NOW the established facts are that the parties were married sometime in 1971. They lived as husband and wife for a short duration but according to the husband the marriage was not consummated. Thereafter they separated and the lady first lived with her parents and is now living in Farrukhabad. For a period of five years, between 1972 and 1977, she was a teacher in an Educational Institution. She is double M. A. The husbands monthly income is of Rs. 1200/- and the husband first obtained a decree for restitution of conjugal rights and when the wife did not obey it, he has also obtained a decree for dissolution of marriage by way of divorce and hence the lady was not entitled to any relief.

( 6 ) THE case of Smt. Mahtab Begum v. Ansar Ahmad, 1986 All LJ 1096, has been cited to support the argument that a claim for maintenance under S. 125, Cr. P. C, has for its premise neglect or refusal of the spouse to maintain the wife and in view of the proviso to sub-sec. (2) if the husband offers to maintain his wife on the condition of her living with him, and she refuses to live with him, and the claim of the husband for restitution of conjugal rights exists on the finding that the wife had no reasonable ground to live separate from the husband, maintenance cannot be granted.

( 7 ) THERE is no quarrel with this legal position. But S. 125 of the Criminal Procedure Code clearly lays down that for the purpose of that provision of law a divorced wife will also be entitled to maintenance like a wife. My attention was however, drawn to the fact that the divorce was granted because the wife did not obey the decree for restitution of conjugal rights, and, therefore, she shall not be entitled to any maintenance because the husband was always ready and prepared to keep her and it was she who failed to honour the decree for restitution of conjugal rights also. My attention was invited to Cl. (4) of S. 125 of the Criminal Procedure Code which may be extracted as follows : - "no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refused to live with her husband, or if they are living separately by mutual consent. "

( 8 ) WITH reference to this sub-c