TAKHATBEN Vs. JASHUBHAI PRABHATSINH RATHOD

JUDGEMENT

(1.) THE petitioner wife filed maintenance application under Section 125 of the Criminal Procedure Cole before the Judicial Magistrate, First Class, Borsad for recovering maintenance at the rate of Rs. 500/ - per month from the opp. No. 1 husband. The case was numbered as Criminal Misc. Application No. 176/83. The learned Judicial Magistrate, First Class, Borsad by his judgment and order dated 11th May, 1984 rejected the said application on the ground that the petitioner had failed to prove that she was driven out by the opponent No. 1 after heating her and that she was staying separately from her husband without any reasonable cause, against the said judgment and order the petitioner has filed the aforesaid revision application.

(2.) IN this revision application the learned advocate for the petitioner has vehemently contended that the learned Magistrate has wrongly relied upon the alleged writing Ex. 23 and held that the petitioner had foregone her right of maintenance. It was further on 24 -9 -84 submitted that the opp. No. 1 had remarried and, therefore as per the provisions of Section 125 of the Criminal Procedure Code she was entitled to have separate residence and maintenance.

(3.) IN this case it is an admitted fact that opponent No. 1 has remarried. Even in the affidavit -in -rely filed before this Court the opponent No. 1 has stated that his family consists of six children his present wife and himself. As the opponent No. 1 has remarried, under Section 125(3) explanation it would be a just ground for the first wife's refusal to live with the husband and the first wife would be entitled to separate residence and maintenance.