This application has been filed by husband u/s 482 of the CrPC 1973 (For short 'the Code') against the revisional order dated 3.6.95 passed by the Sessions Judge, Rajgarh (Biaora) in Cr. Rev. No. 86/94 confirming the order passed by the CJM Rajgarh, in M.Cr.C. No. 1/92 on 20.7.94 whereby the applicant was directed to pay Rs. 250/- per month as maintenance allowance u/s 125 of the Code to the non-applicant wife.

It is not in dispute that the non-applicant Laxmibai was legally wedded wife of the applicant. She filed an application (MJC No. 712/83) u/s 125(1) of the Code for grant of maintenance allowance. The learned Chief Judicial Magistrate holding that the non-applicant herself had left her husband's home, she could not prove that the applicant neglected or refused to maintain her, dismissed the application vide order dated 7.2.83. The non- applicant filed revision (Cr.Rev. No. 212/85) but was unsuccessful. Thereafter she preferred an application u/s 482 of the Code (MCRC No. 268/85) but that also met the same fate. The applicant husband filed a petition (C.S. No. 8A/87) u/s 9 and 13 of the Hindu Marriage Act, 1955 for restoration of conjugal rights or for divorce on the ground of desertion. The learned District Judge vide judgment dated 27.10.90 passed decree of divorce. In this case also the non-applicant filed an application u/s 24 of the Hindu Marriage Act for grant of maintenance allowance but it was also rejected.

The non-applicant after passing of the decree of divorce against her, filed an application u/s 125 of the Code and claimed maintenance allowance on the ground that decree of divorce had been passed against her and she had not remarried and was unable to maintain herself, therefore, she was entitled to maintenance allowance. The applicant resisted the application. The learned CJM allowed the application and granted maintenance of Rs. 250/- per months from the month of August, 1994. The petitioner challenged this order in Cr. revision petition No. 86/94 which was dismissed by Sessions Judge vide order dated 3.6.95. Against this order, the applicant husband has filed this petition u/s 482 of the Code.

Shri Jaisingh, learned counsel for the applicant, submitted that the application of the non-applicant wife filed u/s 125 of the Code and section 24 of the Hindu Marriage Act, 1955 for grant of maintenance allowance had been rejected on the ground that she had deserted the applicant and was living separately on her own volition and without any good and sufficient cause, therefore, this application for the same relief was not maintainable. The learned Courts below committed illegality in granting maintenance allowance, therefore, the order of maintenance allowance be set-aside. Shri Pawanekar, learned counsel for the non-applicant, submitted that the applications of the maintenance allowance filed by the non-applicant were rejected before passing of the decree of divorce on the ground that she had herself deserted her husband and was living separately from her husband without any sufficient reason but after passing of decree of divorce the position had changed. He submitted that divorced wife was entitled to maintenance till she remarried and the non-applicant had not remarried, therefore, she was entitled to maintenance allowance.

I considered the arguments advanced by counsel for both sides and perused the impugned order passed by the Courts-below. As stated earlier, the maintenance application filed by the non-applicant wife u/s 125 of the Code and 24 of the Hindu Marriage Act, 1955 were dismissed on the ground that the applicant had offered her to maintain on condition of her living with him and she had refused to live with him without just ground. Now after decree of divorce husband had no right to offer her to maintain on condition of her living with him. The application dismissed before decree of divorce has no effect of res judicata as the ground available to the applicant before decree of divorce for