NANU Vs. VASANTHA

JUDGEMENT

(1.) The respondent herein filed M. C. No. 119/76 under S.125 of the Code of Criminal Procedure (for short, the Code) against her erstwhile husband, the present petitioner and the same was dismissed on 8-5-1978 holding that the wife was living separately from the husband without reasonable cause and there was no neglect or refusal to maintain her on the part of the husband. The petitioner thereafter filed O.P. No. 389/78 before the civil court for restitution of conjugal rights and restitution was ordered on 6-10-1978. The wife refused to go back to him and the petitioner filed O.P. No 380/79 for divorce and divorce was granted on 31-10-1980. Thereafter the divorced wife, the present respondent, filed M. C. No. 42/81 claiming maintenance from the petitioner herein under S.125 of the Code. The learned Magistrate dismissed the petition on the ground that a fresh application under S.125 of the Code could not be entertained in view of the dismissal of the previous application. The present respondent challenged this order in revision and the Sessions Court taking the contrary view, set aside the order of the learned Magistrate and remanded the case for disposal afresh in accordance With law. It is this order which is now challenged in revision.

(2.) Learned counsel for the revision petitioner would contend that the view taken by the learned Magistrate was correct and a fresh application between the same parties would not be competent and the remedy available to a divorced wife is to file an application under S.127(2) of the Code. Learned counsel also placed reliance on the decisions in V. M. Avadhut v. Ratprabha Avadhut and others 1978 CriLJ 1406 and Balakrishnan v. Rajamma, 1979 KLT 502 .

(3.) In V. M. Avadhut's case there was an order directing payment of maintenance to the wife and child. She again filed a separate application alleging that the husband was not paying maintenance regularly. The second application was filed before another court. The proceedings were under the Code of Criminal Procedure, 1898. The Bombay High Court held that the second Application was not maintainable and the remedy of the wife was to file an application for getting arrears of maintenance. The principle decided in the above decision has no bearing on the controversy in this case. The point decided in Balakrishnan's case was that on the dismissal on merits of an application under S.125 of the Code, a fresh application may not lie because the earlier order would be final. This proposition also is not in issue in this case, and does not help the revision petitioner.