SUNANDA Vs. CHANDRAKANT

JUDGEMENT

(1.) THIS petition impugns the reversal of an order for maintenance passed in favour of the petitioner in proceedings initiated under S. 125 read with S. 127 of the Code of Criminal Procedure, 1973.

(2.) THE petitioner and respondent No. 1 are wife and man respectively, joined in that union at Chalisgaon on 31-5-1978. The marriage has been an unhappy one right from the inception. The petitioner instituted a proceeding under S. 125, Cr. P. C. in the Court of J. M. F. C. at Chalisgaon, which proceeding was registered as Criminal Miscellaneous Application No. 22 of 1979. In this application, it was alleged that the husband though possessed of sufficient means had refused and neglected to maintain the wife who was not in a position to maintain herself. The husband contested the proceeding contending that far from his not wanting the wife to live with him or maintain her it was that lady who had deserted him soon after the marriage and had refused to return back. The learned Magistrate who heard the 1979 application, dismissed it and the wife's revision to the Sessions Court met with no better result. The husband having succeeded, it was now his turn to give a dose of her own medicine to the wife. He therefore filed two proceeding, one in a Court at Jalgaon and the other in a Court at Thane. The two proceedings were for a divorce and a declaration that the marriage was a nullity. Both these petitions were dismissed. The spouses being addicted to litigation, the wife now initiated Criminal Miscellaneous Application No. 6, of 1982 claiming maintenance under S. 125 of the cr. P. C. It was averred that there had been a change in the circumstances, for which reason the dismissal of the earlier application for maintenance did not operate as a bar. The husband took exception to the second application for maintenance, pleading the bar of res judicata and also that the equities were such as to disentitle the wife from claiming maintenance. Parties were examined and so far as the attitude of the husband is concerned, it is best reflected in the following passage from the judgement of the learned Magistrate :-

(3.) HAVING regard to the submissions made by learned Counsel. I have to address myself to the determination of the following questions : 1. Whether the second application for maintenance was maintainable in law ? 2. Whether the wife established the husband's neglect and refusal to maintain her ? i record affirmative answer to both the points and allow the petition for the reasons given below.