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6. Pending the petition for restitution of conjugal rights, the wife initiated the present proceedings for maintenance under section 125 of the Code on 6th of February, 1979 before the J.M.F.C., Malegaon being Maintenance Application No. 30 of 1979. The wife alleged in her application that the husband was ill-treating her and was making unlawful demand of some valuable articles from her and had asked her father to take her away when her father took her to his house, the husband did not make any attempt to bring her back to the matrimonial home nor did he care to provide for maintenance for her. It was alleged that the husband was having a cycle shop and was earning about Rs. 5,000/- per month and, therefore, the wife should get maintenance of Rs. 500/- per month.

10. Being aggrieved by the said judgment and order dated 3rd May, 1993 the petitioner filed Criminal Revision Application No. 135 of 1993 in the Court of the Additional Sessions Judge at Malegaon. Contentions which were raised in the trial Court were reiterated by the petitioner in the revisional Court. The learned Additional Sessions Judge by his judgment and order dated 2nd March, 1994, came to the conclusion that the trial Magistrate was justified in placing reliance on the judgment of the learned Single Judge in Smt. Sugandhabai's case (supra) and even if there was a decree for divorce in favour of the husband on the ground of desertion by the wife, the application for maintenance by the divorced wife was maintainable and that section 125(4) of the Code would not be a bar to the maintainability of such an application. The learned Additional Sessions Judge further held that the application for maintenance was filed on 6th February, 1979 whereas the Hindu Marriage Petition No. 133 of 1978 for restitution of conjugal rights was filed on 12th July, 1978 but was decreed on 31st July, 1979 and what was important was that the Hindu Marriage Petition No. 264 of 1980 for divorce was filed on 1st August, 1980 and a decree for divorce was obtained on 3rd December, 1980. In the circumstances, the learned Judge on 2nd March, 1994, dismissed the revision application with costs. We have already indicated earlier that the wife's application for maintenance, though filed on 6th of February, 1979, was decided on 3rd May, 1993.

20. In Kalidas Durgaji Shinde v. Parwatibai Kalidas Shinde, , the spouses were married for about 6 years and the wife had alleged ill treatment and cruelty on the part of the husband. The wife went and stayed with her brother. Attempts to bring about reconciliation failed. The husband thereafter filed petition for restitution of conjugal rights, as has been done in the case before us. He obtained a decree for restitution of conjugal rights. Since the decree for restitution of conjugal rights was not obeyed, the husband filed a suit for divorce and obtained a decree for divorce. In the application for maintenance under section 125 of the Code, the husband denied his liability to pay maintenance in view of the above facts. The trial Magistrate held that the wife had not proved that the husband had refused and neglected to maintain her and hence rejected her application. The Sessions Judge took the view that since the wife was a divorcee, she was entitled to claim maintenance in view of Explanation (b) to section 125(1). He therefore, awarded Rs. 50/- per month to her. The husband approached this Court in revision and the main contention was that merely because she was a divorcee, by itself, the status of a divorcee cannot invest her with a right to seek maintenance. This Court considered the decision of the Apex Court in Bai Tahira's case and the Division Bench decision of this Court in Sharadchandra Satbhai's case, judgment. Relying upon the fact that there was a decree for restitution of conjugal rights and thereafter a decree for divorce obtained by the husband during the pendency of the proceedings under section 125 and holding that there was no refusal and neglect to maintain the wife since she had deserted the husband as held by the Civil Court, the application for maintenance of the wife was dismissed by the learned Single Judge- M.S. Deshpande, J. The argument that a divorcee would automatically be entitled to claim maintenance was rejected and it was held that Explanation (b) to section 125(1) only gives an extended meaning to the term "wife" and does not enlarge the rights of a wife if in course of time she became a divorcee. In the result, the husband's revision application was allowed.

21. It is true that in Smt. Sugandhabai v. Vasant Ganpat Deobhat, 1992(1) Mh.L.J.427: 1992 Cri.L.J. 1838, a learned Single Judge M.S. Vaidya, J., has taken the view that a decree for divorce in favour of the husband on the ground of discretion by the wife would not disentitle her from claiming maintenance under section 125 of the Code. The learned Judge was disposing of two cases by a common judgment and order. In Criminal Application No. 46 of 1989 the wife's application for maintenance was dismissed by the trial Magistrate on 3rd March, 1979 on the ground that neglect of the wife by the husband was not proved. Wife's revision was dismissed by the Sessions Court on the same ground on 4th January, 1980. The husband then filed Hindu Marriage Petition No. 25 of 1980 alleging desertion by wife. The petition was decreed on 30th September, 1982 and divorce was granted to the husband. No application for maintenance or permanent alimony was preferred by the wife had, hence, there was no occasion for making an order under section 25 of the Hindu Marriage Act, 1955. Though the wife had failed earlier in her application under section 125 in both the courts, she filed a fresh application in the year 1982 after the husband had obtained a decree for divorce and claimed maintenance on the ground that she was a divorcee but was unable to maintain herself. The trial Magistrate dismissed the application on 18th October, 1985 on the ground of res judicata. Revision was also dismissed by the Sessions Court on 25th January, 1988. The wife approached this Court. In the second case decided by M.S. Vaidya, J., being Criminal Application No. 585 of 1991, the marriage had taken place on 17th March, 1979. Child was born on 6th March, 1980. The wife had filed the petition for restitution of conjugal rights on 3rd January, 1983 and obtained a decree on 29th April, 1983. Thereafter she applied under section 125 of the Code on 23rd November, 1983. The application was granted only so far as the child was concerned but the wife's claim was rejected on the ground that she had deserted the husband. The husband thereafter preferred Hindu Marriage Petition No. 334 of 1987 for divorce. The same was decreed on 1st December, 1988 and divorce was granted to him on ground of desertion. The wife's appeal to the District Court was dismissed on 30th July, 1990. The wife had also, in the meanwhile, filed a revision against the dismissal of her claim of maintenance. That revision also was dismissed on 19th January, 1989. The wife, therefore, approached this Court in revision. The learned Single Judge considered the view of the Division Bench in Sharadchandra Satbhai's case as also the view expressed by D.N. Mehta, J., in Shantibai Saitwal's case but came to the conclusion that the ratio of the Division Bench decision was inapplicable to the facts of the case before him and further that D.N. Mehta, J., had misapplied the ratio of the Division Bench decision in Sharadchandra Satbhai's case. Vaidya, J., referred to the decision of the Gujarat High Court in Patel Dharamshi Premji v. Bai Sakar Kanji, A.I.R. 1986 Guj. 150 where it was held that under section 25 of the Hindu Marriage Act, 1955 permanent alimony can be granted even to an erring wife and the mere fact that the wife did not comply with the decree for restitution of conjugal rights and that was the cause for passing the decree against her, cannot by itself, disentitle her to claim permanent alimony under section 25 of the Hindu Marriage Act. Relying upon some other decisions with which we do not think it necessary to burden this judgment, Vaidya, J., came to the conclusion that the ratio of the Division Bench decision in Sharadchandra Satbhai's case was not applicable to the two cases before him. In para 14 of the judgment in Sugandhabai's case at page 1844 a reference is made to the decision of the Apex Court in Bai Tahira's case. The learned Single Judge set aside the orders passed by two courts below which were against the wife and remanded the matter back to the Magistrate with a direction to allow the parties to adduce evidence. With respect, we find it difficult to agree with the view expressed by Vaidya, J., in Smt. Sugandhabai's case in view of our discussion in paras 14 to 17 above and in particular the reasons mentioned in paras 15 and 16. We are in agreement with the view expressed by the Division Bench in Sharadchandra Satbhai's case (see para 12 and 17 above). We are also in agreement with the view expressed by the learned Single Judge in the three cases discussed above (i) Baburao Kalaskar's case, decided by Puranik J. (para 18 above), (ii) Smt. Shantabai Saitwal's case decided by Mehta, J., (para 19 above) and (iii) Kalidas Shinde's case decided by Deshpande, J., (para 20 above).