JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel appearing on behalf of the respective parties. 2. Challenge in this petition is to the impugned judgment and order dated 06.09.2016 passed by the learned Sessions Court, Bhandara in Criminal Revision Application No. 04 of 2014 by which the learned Sessions Judge, by setting aside the judgment passed by the learned Judicial Magistrate First Class, Bhandara on the application filed by respondent No.1 under Section 125 of the Code of Criminal Procedure, rejecting the same, had directed the petitioner to pay maintenance to respondent No.1 at the rate of Rs.3,000/- per month. 3. The facts in brief, which give rise to filing of the present petition, can be summarized as under - The respondent No.1/wife had moved an application under Section 125 of the Code of Criminal Procedure before the learned JMFC, Bhandara seeking maintenance of Rs.3,000/- per month for herself and for respondent No.2/daughter alleging that after her marriage with the petitioner on 09.05.1993, she had given birth to two children namely respondent No.2 and one son namely Pradyumna. It is submitted in the application that the petitioner was continuously ill treating respondent No.1/wife. On 28.11.2009, the petitioner drove respondent No.1 out of the house along with respondent No.2 and since then she is residing in a tenanted premises with respondent No.2. The petitioner resisted the application and has come out with the specific case that it is respondent No.1 who was of quarrelsome nature and had developed illicit relationship with one Rupesh Mundle and as such was living in adultery. It is further contended that in fact the petitioner's son found respondent No.1 having indulged in illicit act with said Rupesh Mundle which fact was informed to the petitioner by him and in this background, when petitioner had objected for the same, in order to avoid any hindrance in her relations with Rupesh Mundle, the respondent No.1 chose to leave the company of the petitioner and left his house on 28.11.2009 and started living separately. 4. It is further the case of the petitioner that in fact since respondent No.1 was found living in adultery with Rupesh Mundle, the petitioner had initiated one criminal prosecution against him for the offence punishable under Section 397 of the Indian Penal Code which has resulted into convicting said Rupesh Mundle. 4. It is further the case of the petitioner that in fact since respondent No.1 was found living in adultery with Rupesh Mundle, the petitioner had initiated one criminal prosecution against him for the offence punishable under Section 397 of the Indian Penal Code which has resulted into convicting said Rupesh Mundle. Thus, it is the case of the petitioner that since respondent No.1 had left his house at her own without any reason and since she indulged in adultery and has continued in such relations with Rupesh, she is not entitled for maintenance. 5. The learned trial Court has considered the evidence of respondent No.1, her brother and also of petitioner and his son Pradyumna and two witnesses. The trial Court finding that respondent No.1 has developed illicit relations and continued to live in adultery, rejected the application for grant of maintenance with costs. 6. The respondent No.1 challenged the order of rejection of maintenance by preferring revision. By passing order dated 06.09.2016, the learned revisional Court granted maintenance at the rate of Rs.3,000/- per month to respondent No.1 from the date of application i.e. from 25.06.2010, which is impugned in the instant petition. 7. Shri Charpe, the learned Counsel for the petitioner has submitted that the learned revisional Court has neither considered the evidence on record nor considered the factual position in its proper perspective. It is further submitted that the learned trial Court had considered the evidence of petitioner and his witnesses particularly of his son Pradyumna and had rightly reached and concluded that the respondent No.1 has indulged in adulterous relations with Rupesh Mundle and as such held that the respondent No.1 was not entitled for maintenance. It is further contended that the learned revisional Court, on the contrary, by exceeding its scope in revision, without considering the evidence on record, has wrongly held that the petitioner has not brought on record the cogent evidence pointing out adultery, though raised such ground, has failed to prove the same. It is submitted that in fact, on the evidence, the petitioner can be said to have established his case beyond reasonable doubt and has thus submitted that the petition be allowed by setting aside the impugned order. 8. It is submitted that in fact, on the evidence, the petitioner can be said to have established his case beyond reasonable doubt and has thus submitted that the petition be allowed by setting aside the impugned order. 8. Shri Gulhane, the learned Counsel for respondent No.1/wife submitted that there is no evidence to establish that the said respondent was living in adultery with Rupesh Mundle and has contended that the evidence of petitioner's witnesses is concocted. No reason is put forth by the petitioner to not to examine any independent witness and has thus submitted that such evidence be rejected. It is further contended that in fact from the affidavit of one Vijaya Ramteke, the respondent No.1/wife had established that at no point of time any other person muchless than Rupesh Mundle used to visit the premises of respondent No.1/wife which was occupied by her as a tenant. It is further submitted that since the petitioner has not established the fact that respondent No.1 living in adultery but from the record it can be held that respondent No.1 is neglected from being maintained by the petitioner, the petition be dismissed by confirming the impugned order. In the set of these facts, the learned Counsel for respondent No.1 has placed heavy reliance on the judgment of this Court in the case of Sambhaji Baburao Wadajkar .v. Parvatibai Sambhaji Wadajkar and another (reported in 2009 (1) Mh.L.J. (Cri), 210). 9. Ms. Hiwase, the learned Counsel (appointed) for respondent No.2 has fairly conceded that against rejection of maintenance by the learned trial Court, the respondent No.2/daughter has not filed any revision. She has not disputed the fact of said respondent No.2 not challenging even the impugned judgment by which maintenance is granted only to respondent No.1 and by referring to the evidence on record, has submitted that respondent No.1's brother in his evidence has admitted that the respondent No.2 was residing with the petitioner. In that view of the matter, the said respondent is found to have been made party as respondent No.2 as she was party to the original proceedings. 10. In that view of the matter, the said respondent is found to have been made party as respondent No.2 as she was party to the original proceedings. 10. Having considered the facts and submissions advanced as aforesaid and on considering the provisions of Section 125 of the Code of Criminal Procedure, it is noted that as per this provision, wife is entitled for maintenance upon proving that the husband has neglected or refused to maintain her and further that she is unable to maintain herself. If these three facts are proved, then she is entitled for the order of maintenance against her husband. 11. On cursory reading of sub Section (4) of Section 125 of the Code of Criminal Procedure, it is found that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. 12. In view of the aforesaid ingredients of sub Section (4) of Section 125 of the Code of Criminal Procedure and on perusal of record, it is noted that in support of her case, the respondent No.1/wife had examined herself and her brother. In support of her application for grant of maintenance, the brother of respondent No.1 has deposed in his evidence that the marriage between the petitioner and respondent was solemnized on 09.05.1993. However, the respondent No.1 since then was subjected to cruelty by demand of Rs.50,000/- and as the petitioner was doubting her character, she was constrained to live away from the petitioner. As against this evidence, the petitioner and his witnesses established that the respondent No.1 was having illicit relations with Rupesh Mundle and thus was living in adultery. From the evidence of Pradyumna, it has also come on record that Rupesh Mundle used to visit when the petitioner was out of house on tour and respondent No.1 used to send him out of the house on the pretext of playing games and used to close the entrance door of the house and as such he was not allowed to enter the house till late in the evening. In fact, from the evidence of son Pradyumna whose evidence is found materially corroborated by the petitioner's witnesses Prakash Thakre and Sudam Chauhan, it is further established that on one occasion, when the petitioner was out of the house on tour, he had witnessed respondent No.1 in compromising position with Rupesh Mundle and has also found them having no clothes on their persons. He informed the said fact to the petitioner upon which the petitioner restrained Rupesh from coming to his house and on this issue, respondent No.1 had indulged in quarrel with the petitioner. From the evidence of this witness, it is further established that in spite of restrain imposed by the petitioner, the respondent No.1 was in contact with Rupesh on phone and started residing separately with him at same village Bhiwapur in a rented premises. 13. As already stated above, the evidence of petitioner himself as well as the evidence of witnesses Prakash Thakre and Sudam Chauhan further corroborate the version of Pradyumna thereby establishing the fact of respondent No.1 having indulged continuously in adultery. In spite of the evidence on record, as aforesaid, the learned revisional Court has grossly erred without considering the evidence on record when it is held that though it is obligatory on the part of the petitioner to prove that the respondent No.1 was indulged in adultery, has failed to establish the same by not bringing on record the cogent evidence. 14. In fact, it is to be noted that the powers under Section 397 of the Code of Criminal Procedure are limited and in revision, the Court cannot re-appreciate the evidence unless there is manifest error of law. Having considered the proceedings, no such error is apparent on the record nor is found in the trial Court's judgment which needs interference. Though one of the grounds also put forth by the learned Counsel for respondent No.1 is that a single act of sexual intercourse is not an adultery, and that the words “living in adultery” mean continuous illicit relations or sexual relations by a lady with other person or extra marital relations with third person and that there is no evidence on record to establish “continuous adultery”. However, there is no substance in this submission as on perusal of evidence of above witnesses, examined by petitioner, it is amply established that such relations between respondent No.1 and Rupesh Mundle were continuous in nature. In that view of the matter and on going through the entire evidence on record and after going through the findings recorded by the learned trial Court, it has rightly come to the conclusion that the respondent No.1 was living adulterous life and, therefore, she is not entitled to claim maintenance. The onus of proving that the wife was living in adultery is on the husband which in the instant case appears to have been satisfactorily established by the petitioner. 15. Shri Gulhane, the learned Counsel for respondent No.1, in support of his case, though has relied on the judgment of this Court in the case of Sambhaji Baburao Wadajkar .v. Parvatibai Sambhaji Wadajkar and another (cited supra), same cannot be applied in the facts of the present case as in that case, there was nothing on record brought by the husband by way of evidence to establish that the wife was continuously living in adulterous life; while in the case in hand, from the evidence of petitioner himself and his son Pradyumna corroborated materially by witnesses Prakash and Sudam, it is amply established that the respondent No.1 is continuously living in adulterous. In that view of the matter, the judgment relied by the respondent No.1/wife is of no assistance. Moreover case of petitioner of respondent No.1 leading adulterous life is further found substantiated from the proved fact of conviction imposed upon Rupesh Mundle by the competent Court, by its judgment in Summary Criminal Case No.41 of 2010 initiated on the complaint filed by petitioner. 16. In the result, the writ petition is liable to succeed, accordingly same is allowed. Rule is made absolute. Impugned judgment dated 06.09.2016 passed by the learned Sessions Judge, Bhandara in Criminal Revision No. 04 of 2014 is quashed and set aside.