SOU JANABAI Vs. KRISHNA RAVBA RITHE

JUDGEMENT

(1.) THE petitioner is the wife of the 1st Respondent. Her application for maintenance being Misc. Application No. 8 of 1985 under Section 125 of the Code of Criminal Procedure has been rejected by the Court of the Judicial Magistrate, First Class, Khandala. It is rejected on the ground that it is barred by res judicata on account of the dismissal of her previous application being Criminal Misc. Application No. 30 of 1967 of the Court of the Judicial Magistrate, First Class, Wai. The petitioner challenged the order passed in Misc. Application No. 8 of 1985 by filing in the Court of the Session, Satara, Criminal Revision Application No. 242 of 1987. By judgment and order dated 8/08/1988, the learned Additional Sessions Judge was pleased to affirm the finding of the trial Magistrate that the application for maintenance is not maintainable on the ground that the same is barred by res judicata. Both the trial Court as also the revisional Court have not given their findings on the merits of the claim, but have proceeded to dismiss the application on the ground that the same is barred by res judicata. Hence the short question that arises for my consideration is, whether the present application is maintainable or is barred by res judicata ?

(2.) THE petitioner was married to the 1st Respondent sometime in the year 1963. They appear to have lived happily for some time. No issues were born for a period of 3 to 4 years during which time the parties cohabited with each other. Sometime in the year 1967, parties appear to have parted company and the petitioner started residing in her parental house.

(3.) THE petitioner filed Criminal Misc. Application No. 30 of 1967 in the Court of the Judicial Magistrate, First Class, Wai, under Section 488 of the Code of Criminal Procedure (old Code) for maintenance. According to the petitioner, she was ill-treated on the grounds inter alia that she did not conceive any child. The 1st Respondent wanted to remarry but the Petitioner declined to accord her consent. Moreover, the 1st Respondent did not like the petitioner as she was not beautiful and had lost her one eye. She was, therefore, ill-treated and thereafter driven out of the house. The petitioner further alleged that the 1st Respondent contracted a second marriage with one Krishnabai on 7/04/1987. She contended that the annual income of the 1st Respondent was between Rs. 2000/- to Rs. 2500/ -. She prayed for maintenance at the rate of Rs. 50/- p. m.