P. A. KULKARANI, J. ( 1 ) THIS is a revision against the order dated 18/8/1986 passed by the II Addi. Sessions Judge, Dharwad, setting aside the order dated 31/7/1985 passed-by the Addi. Chief Metropolitan Magistrate, Dharwad in Cr1. Case (MIs) 52/81 awarding a monthly maintenance of Rs. 100/- to the petitioner-wife from the date of the order i. e. 31/7/1985. ( 2 ) THE parties have been referred to in this revision with reference to their position in the court of the Magistrate. ( 3 ) THE petitioner-wife was married to the respondent husband at Dharwad according to Christian rites. The petitioner gave birth to three male children namely Arthur-now aged 23 years, Moses- now aged 20 years and Edwin -now aged 19 years. The petitioner and the respondent lived happily for three years after the marriage. According to the petitioner, thereafter the respondent started leading an immoral life and created a situation, which the petitioner could not tolerate. At the instance of a kept-mistress, Irene, the respondent, while he was living with the petitioner at Panje in South Kanara ill-treated her, beat her and drove her out of the house. Learning about the same the petitioners family members fetched her back to Dharwad. According to the petitioner, all her attempts to persuade the respondent to lead a happy married life with the petitioner, proved vain. The respondent is residing with the said kept mistress Irene all these years arid the latter has given birth to two male children. Not leaving, the matters as they were, the respondent took away all the three children born to the, petitioner and forcibly kept them with him depriving, the petitioner of her motherly happiness. As the petitioner is now a helpless lady, unable to earn her livelihood, she sent a notice through an advocate to the respondent on 26-5-81 to provide her with maintenance of Rs. 400/- per month. The respondent denied his liability to maintain her and hence she filed the petition claiming maintenance. ( 4 ) THE respondent resisted the petition. ( 5 ) THE learned Chief Judicial Magistrate has held that the wife has failed to prove that her husband had willfully neglected or refused to maintain her. However, taking into account the events that prevailed at the time of the passing of the order, he awarded a token, maintenance of Rs. 100/- to the petitioner. ( 5 ) THE learned Chief Judicial Magistrate has held that the wife has failed to prove that her husband had willfully neglected or refused to maintain her. However, taking into account the events that prevailed at the time of the passing of the order, he awarded a token, maintenance of Rs. 100/- to the petitioner. The Magistrate was of the opinion that as the respondent was living with another lady, the petitioner was justified in living away from him. The husband went in revision to the Sessions Judge. The II Addi. Sessions Judge also recorded a finding that the petitioners wife has failed to prove that the husband has willfully neglected or refused to maintain her. According to him, the husband living with the lady Irene would not amount to the husband willfully neglecting or refusing to maintain her. According to him section 125 (3) proviso applies costs to recover the arrears of maintenance. According to him, this proviso does not enable the wife to claim maintenance under section 125 (1 ). Taking this view he set aside the order passed by the Magistrate and dismissed the application filed by the petitioner. Hence, the revision by the wife. ( 6 ) THE Magistrate as well as the Sessions Judge, have recorded concurrent findings that the petitioner has failed to prove that the respondent-husband had neglected or refused to maintain the petitioner-wife. On the other hand, both the courts below have recorded a finding that notwithstanding a decree for restitution of conjugal rights passed against her, she refused to join her husband. A copy of the decree for restitution of conjugal rights has been produced in this case. Therefore, in view of this abundant evidence, both the courts below were justified in holding that the wife has failed to prove that the husband has neglected or refused to maintain her. ( 7 ) IT is only after the decree for restitution of conjugal rights had been passed that this petition under section 125 (1) has been filed. It has been filed after a long lapse of time i. e. nearly more than 12 years. When the husband was deserted by his wife and when the children borne to him by the petitioner-wife were living with, him, the respondent might have taken a woman to look after the children and he must have slipped in establishing a company with that woman. When the husband was deserted by his wife and when the children borne to him by the petitioner-wife were living with, him, the respondent might have taken a woman to look after the children and he must have slipped in establishing a company with that woman. But, however, that does not amount to the husband willfully neglecting or refusing to maintain her, vide. A. I. R. Commentary on Code of Criminal Procedure, 7th edition, pages 740 and 741. On page 740 is stated as, proof of a second marriage by the husband cannot dispense with proof of the neglect or refusal to maintain the wife. At the same page it is stated as Mere fact of second marriage-Neglect or refusal to maintain first wife cannot be inferred - No order for maintenance can be based thereon, unless neglect or refusal to maintain is proved. It has been stated at the same page as, Mere fact that husband has contracted second marriage is not sufficient but it must be proved there is neglect or refusal to maintain on the part of the husband. At page 741 it has been stated as, Mere fact that husband has married again several years after wife left him does not entitled her to claim maintenance unless neglect or refusal to maintain is proved (AIR 1953 Nag. 133: 1953 Cr1. L J 750)1. Therefore, under these circumstance, merely because the respondent has been living with a woman after the petitioner deserted him, it does not entitle the petitioner to get relief under section 125 Cr. P. C. without proof of neglect or refusal. In this case, both the courts-below have concurrently held that the petitioner has failed to show that the respondent-husband has failed or refused to maintain her. ( 8 ) THEREFORE, under these circumstances, the order passed by the Sessions Judge dismissing the petition by the petitioner-wife does not call for any interference. Hence, the revision is dismissed. However, I would like to make it clear that it does not affect her claim to any other right under the general law of the land.