JUDGMENT - DHABE H.W., J.: - This is a revision application by the applicant-husband in a proceeding instituted for maintenance by his respondent wife under section 125 of the Code of Criminal Procedure (for short Cri.P.C.). The respondent claimed that she was legally married wife of the petitioner, the marriage having taken place on 15-5-1960. According to her, she resided with her husband till 27-12-1963. However, according to her, the behaviour of the petitioner with her was far from satisfactory and that under the influence of his parents, he used to misbehave with her. On 27-12-1963 she was driven out of the house by her husband since then she was living with her parents. It was her further case that the petitioner had contracted a second marriage on 7-2-1980, which also showed that he was neglecting her. She claimed that the petitioner did not pay anything to her towards her maintenance. She, therefore, filed an application claiming maintenance from the petitioner under section 125, Cri.P.C. on 3-3-1980. 2. In reply to her application under section 125, Cri.P.C., it was the case of the petitioner that there was a mutual divorce between the parties as per the divorce deed dated 27-12-1963. According to him, it was because of the divorce between the parties, that the respondent left his house and started residing with her parents. According to him, it was only after the long delay of about 17 years that she filed an application for maintenance under section 125, Cri.P.C. against him, which showed that the said application was not bona fide. At this stage it may also be noticed that the respondent wife had also filed a criminal complaint under section 494, Indian Penal Code (for short I.P.C.) against the petitioner in respect of the offence of bigamy, which was also tried by the same trial Judge in whose Court the instant proceedings for maintenance were pending. It is further alleged by the petitioner that on 6-2-1982, the parties made an application to consolidate the two cases for the purpose of reading common evidence in both the cases. Accordingly the learned Magistrate passed an order on 6-2-1982 that both the cases were linked up together for reading evidence. 3. It is further alleged by the petitioner that on 6-2-1982, the parties made an application to consolidate the two cases for the purpose of reading common evidence in both the cases. Accordingly the learned Magistrate passed an order on 6-2-1982 that both the cases were linked up together for reading evidence. 3. The parties led evidence in the case and on the basis of the evidence on record, the learned trial Magistrate held in favour of the petitioner rejecting the application of the respondent for maintenance by his order dated 31-3-1982. Although there is no order produced on record, there is no dispute between the parties that the petitioner was acquitted of an offence under section 494, I.P.C. because of the finding of the learned trial Magistrate that the divorce between the parties was proved by the petitioner. It is further not in dispute that no revision or any other further proceedings were taken by the respondent in respect of the acquittal of the petitioner in the criminal case filed by her punishing him for an offence under section 494, I.P.C. 4. However, against the order dated 31-3-1982, rejecting the application for maintenance, the respondent preferred a revision before the Sessions Judge. The Session Judge, by his order dated 8-12-1983, reversed the finding of the learned trial Magistrate in regard to the divorce between the parties. He further held, contrary to the finding of the learned trial Magistrate, that even assuming that the respondent was the divorced wife, she was entitled to maintenance under section 125, Cri.P.C. Referring to the evidence in regard to the income of the petitioner, he determined the maintenance payable to the respondent at the rate of Rs. 200/- per month with effect from the date of his order. Being aggrieved the petitioner-husband has preferred the instant revision in this Court. 5. The learned Counsel for the petitioner has urged before me that the decision of the trial Magistrate acquitting the petitioner in respect of the offence under section 494, I.P.C. holding therein that there was a divorce between the parties on 27-12-1963, operated as res judicata and it was, therefore, not open to the Session Judge to hold contrary to the decision of the learned Magistrate that there was no valid divorce between the parties. The learned Counsel for the petitioner in support of his above contention has relied upon a decision of the Supreme Court in the case of (Bhagat Ram v. The State of Rajasthan)1, A.I.R. 1972 S.C. 1502. In particular, he has relied upon paras 13 and 14 of the above decision. The facts in the said case were that the Division Bench of the High Court had acquitted in the said case the two accused concerned in that case of offences under sections 120-B, 218, 347, 389, I.P.C. However, there was difference of opinion between the Judges of the Division Bench of the High Court as regards the correctness of the order of acquittal of one accused only in respect of the offence under section 161, I.P.C. and under section 5(1)(a) of the Prevention of Corruption Act. Hence on this difference of opinion in regard to the aforesaid order, the matter came to be referred for decision by the Third Judge. However, the third Judge, to whom the matter was referred, reopened the question relating to acquittal of the said accused in respect of the offences under sections 120-B, 218, 347 I.P.C. in regard to which there was no difference of opinion between the Judges of the Division Bench. The Supreme Court, in the above sets of facts, held that the order of the Division Bench in regard to the acquittal of the accused concerned was binding and conclusive in all subsequent proceedings between the parties on the principle of res judicata, which is also applicable to criminal proceedings. Para 14 of the aforesaid judgment in particular is relied upon to show that the principles of res judicata are also applicable to the criminal proceedings. What is held by the Supreme Court in the said para is that if the appellant is acquitted of the charge of having ammunition in his possession at the first trial, the prosecution was bound to accept the correctness of that verdict and was precluded from challenging it at the second trial. In my view, the ratio of the above decision is of no assistance to the petitioner in the facts of the instant case. 6. It is pertinent to see that the subject-matter of the two cases viz. an application for maintenance under section 125, Cri.P.C. and that of the prosecution for an offence of bigamy under section 494, I.P.C. are entirely different. 6. It is pertinent to see that the subject-matter of the two cases viz. an application for maintenance under section 125, Cri.P.C. and that of the prosecution for an offence of bigamy under section 494, I.P.C. are entirely different. The order of the learned trial Magistrate dated 6-2-1982 would show that both these cases were linked up together only for the purpose of reading evidence. It is true that one of the questions viz. about the divorce between the parties was common to both these proceedings. However, as a result of the finding on the question of the validity of the divorce the outcome for the two proceedings would be different. The finding on the question of divorce would certainly prevent the respondent form prosecuting the petitioner again for an office under section 494, I.P.C., but because of the finding of acquittal in the said case, it cannot be mean that it would preclude the respondent from challenging the order of maintenance passed by the learned trial Magistrate. It was, therefore, open to the respondent to challenge only the order of the learned Magistrate in the maintenance case by filing the revision against the said order and because she did not challenge the order relating to acquittal, it would not mean that she was precluded from challenging the order relating to maintenance. 7. I am, supported in the above view by the decision of the Supreme Court in the case of (Ramagya Prasad Gupta v. Murli Prasad)2, A.I.R. 1974 S.C. 1320, in which it is held that the appeals which arose out of the subsequent suits were not barred by res judicata as the subject-matter of the earlier suit and that of the subsequent suit were entirely different, whatever might have been the common issues between the two suit. The same view is followed in the recent judgment of the Karnataka High Court in the case of (Gurappa v. Gangavva)3, A.I.R. 1984 Karnataka 198 see para 11. There is, therefore, no merit in the contention that on the principles of res judicata the respondent was precluded from challenging the order of the learned trial Magistrate relating to maintenance. 8. In the decision of the Supreme Court cited supra, the question was about the application of the principle of 'res judicata' in the subsequent stage of the proceedings before the same Court and in the same case. 8. In the decision of the Supreme Court cited supra, the question was about the application of the principle of 'res judicata' in the subsequent stage of the proceedings before the same Court and in the same case. That is not the case so far as this case is concerned. In my view, the principle of res judicata that the decision in former case by the competent Court operates as res judicata in a subsequent case is not attracted in the facts of the instant case. Even otherwise, neither there is judgment of the Court acquitting the accused under section 494, I.P.C. on record nor any other material placed on record to show how the principles of res judicata are attracted in the instant case. 9. Another fact of the argument in regard to the application of res judicata is on the basis that the respondent had filed a civil suit for restitution of conjugal rights in 1974 which after framing of issues was dismissed in default in the year 1977. It is clear that there was no decision in the said case and, therefore, it cannot operate as res judicata. Even otherwise, if the respondent proves that the petitioner refused to maintain her or neglected to maintain her in the proceedings under section 125, Cri. P.C., it is open to the Court to grant her maintenance. The contention as regards the application of the principle of res judicata fails and is rejected. 10. If the contention as regards application of the principle of res judicata stands rejected, it is clear that it was open to the Sessions Judge to consider the question whether the divorce between the parties was legal or not in the revision filed before him against the order passed by the learned Magistrate in the maintenance case. The learned Sessions Judge has found that there was neither any pleading nor any proof that divorce by mutual consent was permissible by custom in the caste to which the parties belonged. He, therefore, held that since the divorce was not obtained as per section 13(1) of the Hindu Marriage Act, 1955, which was applicable to the parties, the alleged divorce deed dated 27-12-1963 could not have the effect of dissolving the marriage between the parties and, therefore, the respondent continued to be legally wedded wife of the petitioner. He, therefore, held that since the divorce was not obtained as per section 13(1) of the Hindu Marriage Act, 1955, which was applicable to the parties, the alleged divorce deed dated 27-12-1963 could not have the effect of dissolving the marriage between the parties and, therefore, the respondent continued to be legally wedded wife of the petitioner. He thus held that she was entitled to maintenance under section 125, Cri.P.C. He further held that since admittedly the petitioner had remarried, it clearly would show that he had no intention to take back the respondent. He also held that the act on behalf of the respondent in filing an application of restitution of conjugal right showed that she was willing to go and resume the martial ties with the petitioner. However, since she was helpless to prosecute the said proceedings having no source for meeting the expenses, her petition for restitution of conjugal rights was dismissed in default. The learned Session Judge further found that there was nothing on record to show that the petitioner had taken any steps to bring back the respondent. He, therefore, held that the conduct of the petitioner showed that he wanted to desert the respondent and to remarry. He, therefore, set aside the finding of the learned trial Magistrate and after considering the income of the petitioner, granted maintenance to the respondent. The above finding of the learned Sessions Judge is clearly justified in law as well as on facts on record in the instant case. In fact, no serious attempt is made to challenge the said finding of the learned Sessions Judge since the only challenge made was about the application of the principle of res judicata. 11. The learned Counsel for the respondent has urged before me that apart from the allegations in the application and evidence in regard to the cruel treatment to the respondent and driving her out of the house, it is alleged in the application, which fact is not disputed by the petitioner, that the petitioner had remarried on 7-2-1980 and was living with his second wife without paying anything towards maintenance to the respondent. According to him, the act of the petitioner in deserting the applicant and in contracting a second marriage amounted to extreme type of cruelty and hence the petitioner was liable to maintain the respondent as alleged in the application under section 125, Cri.P.C. The learned Counsel for the respondent has also drawn my attention to the evidence of the respondent in which she stated that she did not receive a single pie for her maintenance from the petitioner and that he completely neglected her. She also stated in her evidence that she was ill-treated by the petitioner and that the petitioner one day took her in a rickshaw and left her near the place of her mother. She further stated that she did not have any source of income and that many times she was put to starvation. The learned Counsel for the respondent has relied upon Explanation to sub-section (3) to section 125, Cri.P.C. in which it is provided that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. It is thus clear that the respondent has clearly proved that she was deserted and that the petitioner neglected to maintain her which fact was established by the second marriage of the petitioner with another woman. The respondent is thus clearly entitled to receive maintenance under section 125 Cri.P.C. 12. The next contention raised on behalf of the petitioner is that although the divorced wife is entitled to maintenance in view of the Explanation (b) to sub-section (1) to section 125 Cri.P.C., the respondent was not entitled to maintenance in this case because she had not come with clean hands and also because her application for maintenance was hopelessly delayed. This question does not really survive for consideration in view of my earlier finding that the learned Sessions Judge was right in holding that the divorce between the parties was not legal and valid and, therefore, the respondent continued to be the legally wedded wife of the petitioner. However, there is no substance in the above contention raised on behalf of the petitioner. Assuming that the respondent was a divorced wife, it is clear by virtue of the Explanation to section 125(1)(b), Cri.P.C. that she was entitled to claim maintenance. However, there is no substance in the above contention raised on behalf of the petitioner. Assuming that the respondent was a divorced wife, it is clear by virtue of the Explanation to section 125(1)(b), Cri.P.C. that she was entitled to claim maintenance. It is true that in the application filed under section 125, Cri.P.C., the respondent does not state that she was a divorced wife, and therefore, she should be granted maintenance under section 125, Cri.P.C. The question that she is a divorced wife was put in issue by the petitioner on the basis of the divorce-deed and on that basis it was alleged that the respondent was not entitled to claim maintenance. In regard to the case set up by the petitioner it is her alternative case that even assuming that she was a divorced wife, she was entitled to maintenance under section 125 Cri.P.C. The respondent never admitted the status of a divorced wife because she did not admit the divorce deed not only in this proceeding but also in the proceedings which she previously instituted for restitution of conjugal rights and also from the complaint case instituted by her for the offence of bigamy against the petitioner under section 494 Cri.P.C. In view of these facts, the learned Session Judge rightly held that the finding of the learned trial Magistrate that by not disclosing this fact above the alleged divorce in her application she did not come with clean hands was not proper and just. I entirely agree with the view taken by the learned Sessions Judge in this regard. 13. It is further contended on behalf of the petitioner that even as a divorced wife, the respondent was required to prove that she was refused to be maintained and was neglected by the petitioner. In this regard, the learned Counsel for the respondent has drawn my attention to the allegations in the application under section 125, Cri.P.C. as well as to the evidence of the respondent to show that the respondent was not paid a single pie by the petitioner towards the maintenance. In this regard, the learned Counsel for the respondent has drawn my attention to the allegations in the application under section 125, Cri.P.C. as well as to the evidence of the respondent to show that the respondent was not paid a single pie by the petitioner towards the maintenance. It is clear from the decision of the Supreme Court in the case of (Bai Tahira v. Ali Hussain Fissalli Chothia)4, A.I.R. 1979 S.C. 362, as well as from the decision of this Court (Aurangabad Bench) in the case of (Balaji Bhaurao Kalbande v. Parubai Baguiji Warhade and another)5, 1984(1) Bom.C.R. 61 , that if there is a divorce, there is no obligation upon the wife to live with the husband. However, when there is an obligation upon the husband to maintain his wife by granting maintenance, it must be shown that when there was divorce, the husband has made arrangements for maintaining his divorced wife. In the instant case, no evidence is placed on record on behalf of the petitioner to show that any maintenance was granted either at the time of the divorce or afterwards to the wife. As referred to above, the wife on oath stated that not a single pie was granted for her maintenance by her husband. If no maintenance is granted to the divorced wife, it would clearly show that the husband had neglected to maintain her within the meaning of section 125, Cri.P.C. and the divorced wife was entitled to claim maintenance. The above contention raised on behalf of the petitioner, therefore, has no merit and is, therefore, liable to be rejected. 14. The next limb of the argument on behalf of the petitioner is that the application for maintenance is hopelessly delayed because according to the respondent, she was forcibly driven out of the house by the petitioner on 27-12-1963, while the application for maintenance was filed on 3-3-1980. The submission, therefore, is that the respondent had waived her claim by reason of delay on her part in claiming the maintenance. So far as the question of delay simpliciter is concerned, it is no ground to reject the claim of the respondent for maintenance because there is no limitation prescribed for making an application under section 125, Cri.P.C. The true question that has to be considered is whether the delay shows the conduct of the respondent to waive her right to maintenance. The delay in the instant case does not show that there is any conduct on the part of the respondent to waive her right to draw such an inference. 15. The respondent has stated in her evidence that she had no source of income during this period and had to starve sometimes. She had maintained by her relations. The conduct of the respondent shows that she wanted to live with the petitioner and, therefore, had filed an application for restitution of conjugal rights but as held by the learned Session Judge, in view of the helplessness due to paucity of funds, she could not prosecute the said proceeding. It would appear that the petitioner had remarried in the year 1980. It is then that she had taken recourse to the proceedings under section 125, Cri.P.C. claiming maintenance thinking perhaps that she had no chance of resuming marital life with the petitioner. The conduct of the respondent, therefore, does not show that she had waived her right to maintenance. The application therefore, filed by her was not liable to be thrown out on the ground of delay amounting to waiver. In this regard, it may also be seen that the alleged divorce had taken place in the year 1963, whereas the right to claim maintenance was granted to the divorced wife by the new Code in the year 1973. It is only thereafter as held by the Supreme Court in the case cited supra as also the decision of this Court cited supra that the new right created in favour of the divorced wife to claim maintenance could be enforced. The above contention regarding delay in filing the application is, therefore, liable to be rejected. In the result, there is no merit in this revision and the same is dismissed. Revision dismissed. -----