JUDGMENT : PANKAJ BHANDARI, J. 1. Petitioner has preferred this Miscellaneous Petition aggrieved by order dated 07.10.2010 passed by Judicial Magistrate, Pilani whereby the Court below has allowed the application under Section 125 Cr.P.C. and has awarded Rs. 1,000/- per month maintenance to respondent No. 2. 2. It is contended by counsel for the petitioner that respondent No. 2 was living in Adultery and therefore she was not entitled to any maintenance as sub-section (4) of Section 125 Cr.P.C. provide that wife will not be entitled to receive any maintenance or interim maintenance if she is living an Adultery. 3. It is contended by counsel for the petitioner that in the judgment passed by the Family Court on 22.04.1989, the Court held that respondent No. 2 is leading an Adulterous life and on that ground decree of divorce was passed in favour of the petitioner. 4. It is contended that the Court below has not considered the judgment of the Family Court and has given a finding contrary to the judgment of the Family Court to the effect that respondent No. 2 is not leading an Adulterous life. Counsel for the petitioner has placed reliance on Mahendra Kumar vs. Shimla, 2006 (3) RCC 1467. 5. Counsel for respondent No. 2 has opposed the Miscellaneous Petition his contention is that the decree passed by the Family Court was an ex-parte decree. It is also contended that the Court below has come to the conclusion that the respondent No. 2 is not living in Adultery and the award of maintenance to the tune of Rs. 1,000/- is a meagre amount which does not call for any interference. Counsel for the respondent has placed reliance on Rohtash Singh vs. Ramendri, 2000 Criminal Law Journal 1498. 6. I have considered the contentions. The only question which crops up from the arguments is whether a divorced wife who has deserted her husband or who is living in adultery is entitled to maintenance. 7. Sub-Section (4) of Section 125 Cr.P.C. provides as under:- “(4) 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.” 8. 7. Sub-Section (4) of Section 125 Cr.P.C. provides as under:- “(4) 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.” 8. Rajasthan High Court in Mahendra Kumar vs. Shimla (supra) interpreting 125(4) Cr.P.C. held that if a decree of divorce is granted on the ground of desertion by wife, she is not entitled to receive any allowance from her husband. 9. The Apex Court in Rohtash Singh vs. Smt. Ramendri was dealing with a similar situation. It was held that: “A women has two distinct right for maintenance as wife she is entitled to maintenance unless she suffer from any of the disabilities indicated in Section 125(4). In another capacity, namely, as divorced women she is again entitled to claim maintenance from the person of whom she was once the wife. A women after divorce becomes a destitute. If she cannot maintain herself or remains unmarried the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her.” 10. The Apex Court in Rohtash Singh (supra) dealt with the situations when marriage is subsisting and where the parties have been divorced. Para 6 of the judgment is reproduced hereunder:- “6. Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.” 11. The judgment of the Apex Court in Rohtash Singh vs. Ramendri (supra) was not brought to the notice of the Rajasthan High Court when Mahendra Kumar vs. Shimla (supra) was decided. The judgment of Mahendra Kumar vs. Shimla (supra) is therefore per-incurium. The dictum of the Apex Court has aptly answered the question in the affirmative. 12. In the present case in hand the petitioner obtained a decree of divorce on the ground of Adultery on 22.04.1989. The application for maintenance was filed in 2003 the marriage was thus not subsisting on the date when the application was moved. In view of the judgment of the Apex court the wife after divorce is entitled to maintenance from her ex-husband and the bar created under sub-section (4) of Section 125 is not attracted. The Court below after placing reliance on Rohtash Singh vs. Ramendri has rightly concluded that a divorced wife is also entitled to maintenance. 13. Consequently the impugned order does not suffer from any perversity. The Miscellaneous Petition is accordingly dismissed. 14. Stay petition stands disposed of.