UMA DEVI AND OTHER Vs. RAM AVTAR TIWARI

JUDGEMENT

(1.) The present revision filed under section 115 of the Code of Civil Procedure by wife facing a suit under section 9 of the Hindu Marriage Act at the instance of her husband and whose application for grant of maintenance pendente lite and expenses remains rejected by the trial Court by the impugned order.

(2.) There appears to be no dispute that the parties are married husband and wife with a child born out of wedlock who stay with the applicant. The parties seems to have developed some differences and are living separately. It is the case of the applicant that she has been subjected to cruelty and thereby compelled to come to her matrimonial home at Katni. It is also her case that she served a notice on the non-applicant seeking maintenance and only after receipt of the said notice the non-applicant filed the suit before the First Addl. Judge to the Court of District Judge, Durg. On receipt of notice the applicant filed an application claiming interim maintenance. The said application was however dismissed on the ground that the burden of proving that the applicant has no source of earning was on the applicant herself which she has failed to discharge by not adducing evidence. Instead of challenging the aforesaid order the applicant preferred another application claiming the expenses and the maintenance. This has again been rejected on the ground that a similar application was earlier rejected. That is how the matter is before this Court.

(3.) The application is very seriously opposed by the non-applicant husband on the ground that earlier order rejecting a similar application operates as res-judicata. It is not possible to agree with the learned counsel. The present application is for maintenance pending decision of the suit. Though such suits are expected to be decided within a period of six months nothing whatsoever has been done so far. The trial Court is likely to take more time. The maintenance is given for the entire period during which the trial continues and if the trial is likely to continue for long the applicant would be entitled to claim maintenance even for this period. In such a case cause of action will arise every month during which the trial continues. Under the circumstances, if the applicant had failed to prove her case for grant of maintenance earlier it does not mean that her right to claim maintenance for subsequent period has also been adjudicated upon. The fact that the trial could not conclude within 6 months as required by law is by self a factor entitling her to make a new application. In such a situation there would be no scope for application for doctrine of re-judicata. The claim of maintenance being for different period any finding recorded in respect of earlier period cannot be accepted as operating as res-judicata for subsequent period. Under the circumstances, this Court has no hesitation in rejecting the submission of the learned counsel based on res judicata.