PULIYULLA CHALIL NARAYANA KURUP Vs. THAYYULLA PARAMBATH VALSALA

JUDGEMENT

(1.) The interesting question to be decided in the revision is whether the dismissal of a petition filed under Section 125 of Cr.P.C. claiming maintenance debars the wife for ever from claiming maintenance by a second application under Section 125 of Cr.P.C. The facts relevant for the case are as follows :- Petitioner is the husband and respondent his wife. They are Hindus. Their marriage was solemnized on 23-5- 1975. Two children were born in that wedlock. Respondent had filed M.C. 7/80 before Judicial First Class Magistrate, Quilandy claiming maintenance under Section 125 of Cr.P.C. Petitioner had claimed maintenance for herself as well as their two children who were then aged 2-1/2 years and 8 months. As per order dated 17-12-1980 learned Magistrate on the evidence adduced granted maintenance at the rate of Rs. 75/- for the eldest child and Rs. 50/- per month for the second child. The claim for maintenance by the respondent-wife was rejected on the ground that there is no justifiable ground for her to live away from the husband and claim maintenance. Respondent had justified her claim for separate residence on the ground that petitioner was treating her with cruelty and also on the ground that petitioner is having relationship with a lady by name Leela. The learned Magistrate found that the said case was not proved. Respondent subsequently filed M.C. 268/95 before the Family Court, Kozhikode on 17-7-1995 claiming maintenance under Section 125, Cr.P.C. Reiterating the earlier allegation of cruelty it was contended that after the rejection of her claim by the learned Magistrate, petitioner did not attempt to get the respondent with him and instead married Leela (the very same Leela alleged to be the concubine in the earlier M.C. 7/80) and begotten three children. It was also alleged that petitioner is residing with the said Leela in the same house and, therefore, she is entitled to get maintenance from the petitioner. Respondent also contended that petitioner is having business in sale of coconut and has also acquired three properties and is getting not less than Rs. 20,000/- per month from those properties and she is, therefore, entitled to maintenance at the rate of Rs. 500/- per month. Petitioner resisted the claim on the ground that as the earlier petition filed by the respondent was dismissed, she is not entitled to file a second application and, therefore, respondent is not entitled to the maintenance prayed for. Petitioner has also denied the case of the income alleged by the respondent. No evidence was adduced by the parties and on the side of the respondent-Ext. B1 voters list and Exts. B2 to B4 extract of admission register issued from the school were marked. The Judge of the Family Court on this evidence found that M.C. 7/80 filed by the respondent for maintenance earlier was dismissed for her failure to adduce evidence to prove justifiable ground for her separate residence and the position is now different and Ext. B1 voters list shows that Leelamma is the wife of the petitioner and Exts. B2 to B4 establish that the said children were born to the petitioner in Leelamma and, therefore, respondent established that petitioner is living with Leelamma as husband and wife and, therefore, respondent is entitled to live away from the petitioner and claim for maintenance. Holding that petitioner is a business man and would definitely have an income of no less than Rs. 3000/- per month, granted maintenance at the rate of allowance of Rs. 500/- per month which is challenged in the revision.

(2.) The learned counsel appearing for the petitioner relying on the decisions in Mohammad Safi v. State of West Bengal, 1966 AIR(SC) 69Vareed Porinchukutty v. State of Kerala,1971 KerLT 204, Balakrishnan v. Rajamma,1979 KerLT 502; C.G. Balakrishnan v. Income-tax Officer, 1988 1 KerLT 192E.K. Thankappan v. Union of India, 1990 1 RCR(Cri) 657 Nanu v. Vasantha,1984 KerLT 382 and Mutesari v. Nandkumar Singh,1916 17 CrLJ 106 argued that the principles of res judicata is applicable to a petition filed under Section 125 of Cr.P.C. and, therefore, the dismissal of M.C. 7/80 bars a subsequent petition for maintenance and on that sole ground the order of maintenance is to be set aside.

(3.) Section 125(1) of the Code of Criminal Procedure enables a wife who is unable to maintain herself upon proof of negligence or refusal by the husband who is having sufficient means to claim monthly allowance for maintenance. Sub-section (4) of Section 125 mandates that no wife shall be entitled to receive an allowance for maintenance from her husband, 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. Sub-section (5) enables the husband on proof that the wife in whose favour an order has been made is living in adultery, or that without sufficient reason she refuses to live with her husband or that they are living separately by mutual consent, to get the order of maintenance cancelled. Section 125 does not contain a provision prohibiting a wife who is unable to maintain herself from claiming maintenance on the ground that her earlier claim for maintenance under Section 125 was disallowed by the Court. The argument of Advocate Sri V.V. Asokan, learned counsel for the petitioner is that principle of res judicata is applicable even in criminal proceedings and as the claim of the petitioner was disallowed earlier the said order of dismissal debars her from claiming maintenance once again. Section 125 of the Code does not support the argument advanced by the learned counsel. Sub-section (5) of Section 125 enables a husband to get an order of maintenance cancelled, if he could adduce evidence and prove that the wife in whose favour an order has been made earlier for maintenance that she is living in adultery or that the wife without sufficient reason refuses to live with him or that the husband and the wife are living separately by mutual consent. It is pertinent to note that these are identical grounds to reject a claim for maintenance made by the wife under sub-section (4) of Section 125. Sub-section (4) reads :-