TULSIDAS MADHAVDAS SHARMA Vs. SHANTABEN TULSIDAS SHARMA

JUDGEMENT

(1.) This Criminal Revision Application has been filed by the petitioner (Orig. opponent-husband) challenging the judgment and order dated 29-3-1983 passed by the learned Metropolitan Magistrate, Court No. 3, Ahmedabad below application of the opponent dated 10-8-1983 in Misc. Cri. Application No. 150 of 1983. By that application, the petitioner-opponent took preliminary objection regarding the maintainability of Misc. Cri. Application No. 150 of 1983 filed by the respondent-Wife under Sec. 125 of the Cr. P. Code for getting maintenance from the petitioner on the ground that there is bar of res judicata in view of the order passed by the Civil Court against the respondent- Wife in Civil Suit No. 1173 of 1977 and H.M.P. Suit No. 298 of 1980 wherein it has been held by the Civil Court that the petitioner-Husband has not deserted the respondent-Wife and she was not entitled to the decree of restitution of conjugal rights and suit was dismissed. Said judgment and order of the Civil Court was confirmed by the High Court in appeal being First Appeal No.. 33 of 1979.

(2.) It has been submitted by the learned Counsel appearing on behalf of the petitioner-Husband that the application under Sec. 125 of the Cr. P. Code filed by the respondent-Wife for getting maintenance amount from the petitioner-Husband, is not maintainable in view of the fact that the petitioner has not deserted or neglected to maintain respondent-Wife. In support of this submission, he has relied on the judgment and orders passed by the Civil Courts in H.M.P. Suit No. 298 of 1980 and Civil Suit No. 1173 of 1977 wherein it has been, in terms, held that the petitioner has not deserted and neglected the respondent-Wife and therefore, respondent-Wife was not entitled to the decree for restitution of conjugal rights. He has further submitted that the said findings are confirmed by the High Court. He has further submitted that these are the concurrent findings of the Civil Courts confirmed by the High Court, they are binding on the Criminal Court for the purpose of awarding maintenance on the application for maintenance under Sec. 125 of the Cri. Pro. Code.

(3.) For appreciating the submissions made by the learned Counsel for the petitioner, it would be necessary to refer to the provisions of Sec. 125 of Cr. P. Code. Section 125 of Cri. P. Code reads as under :