Madhya Pradesh High Court
Munna Singh vs Smt. Tulsa Bai on 16 January, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-91-2017
(MUNNA SINGH Vs SMT. TULSA BAI)
5
Jabalpur, Dated : 16-01-2018
Mr.Sharad Gupta, learned counsel for the petitioner.
Mr.Aditya Sharma, learned counsel for the respondent.
This petition under section 482 of the Code of Criminal Procedure has been filed to invoke the extraordinary jurisdiction of sh this Court to quash the proceeding of MJC No.294/2015 pending, in e the Court of Principal Judge, Family Court, Katni.
ad
2. On behalf of the petitioner-husband it is contended that Pr the respondent-wife filed an application under section 125 of the Code of Criminal Procedure on 20.3.1995. The same was decided as MJC a hy No.09/1995 by order dated 20.2.2002 and the same has been dismissed stating that the wife wanted her husband to live with her separately ad leaving his old parents. Therefore, it has been held therein that the M applicant-wife is not entitled for any maintenance, nor she was subjected to any harassment and that she cannot claim any relief of without any cause. The said order was challenged before the rt Additional Sessions Judge, Katni in Criminal Revision No.13/2002. ou Vide order dated 24.2.2003 the revisional court affirmed the order passed by the learned Judicial Magistrate First Class. C
3. It is contended that the respondent-wife again filed an h application under section 125 of the Code of Criminal Procedure ig before the Family Court, Katni for grant of maintenance in the year H 2015, no fresh cause of action has arose. The husband filed his reply before the Family Court contending that the application filed under section 125 Cr.P.C., is not permissible under the law and it has been filed to harass the present petitioner/husband after a period of 13 years.
4. On behalf of the respondent/wife the application is vehemently opposed and it is stated that the petitioner/husband had appeared before the Family Court and filed his reply. The Family Court is competent to decide the application and consider the contentions. It is also submitted that the petitioner without any order from the Family Court has approached this Court under section 482 of the Code of Criminal Procedure, therefore, it is not maintainable.
5. No doubt the statute has not prohibited any wife to claim maintenance within a period of limitation, but the wife filing petition for maintenance has to explain reasonable undue delay in taking recourse to the court of law. The delay shows the conduct of the party which is very much relevant to appreciating the fact and the issue involved in the case.
6. Section 482 of the Code of Criminal Procedure provides sh for exercising the inherent powers of the High Court in case where (i) e the power is not to be resorted to if there is a specific provision in the ad Code of Criminal Procedure for redressal of the grievance; (ii) it Pr should be exercised very sparingly to prevent abuse of the process of any Court or otherwise to secure the ends of justice; and it should not a be exercised against the express bar of law engrafted in any other hy provision of the Code.
ad
7. The case should be tried or continued because there is M fresh allegation of new facts has to be seen if there is any new cause of action the same can be maintainable.
of
8. In Mahua Biswas (Smt.) Vs. Swagata Biswas and another, (1998) 2 SCC 359 the Apex Court has held that subsequent rt to passing of the order of maintenance by the Court, parties ou compromising and starting living together but later falling apart, under C such circumstances, during operation of the compromise the order of h maintenance held to be remain suspended but was not wiped out ig altogether. Hence, when the compromise failed the Supreme Court H restoring the position of the wife under the original order of maintenance. However, the parties were given liberty to claim any other relief by raising a matrimonial dispute before the matrimonial court.
9. In the case of Sunanda Chandrakant Karanjkar Vs. Chandrakant Bhaskar Karnjkar, 1988 Maharashtra Law Journal 610 the High Court of Bombay has held that the application for maintenance in 1979 by wife whose marriage took place on 31.5.1978 was dismissed and the decision was maintained in revision. The wife filed an application in 1982 averring change in the circumstances. The fact that wife had failed in first application did not mean that she was for ever disentitled to claim maintenance. Application for maintenance allowed by Magistrate but in revision by the husband the Sessions Court dismissed the application for maintenance on ground of dismissal of first application on merits debarred second application. Order of Sessions Court set aside holding that passage of time and certain supervening events having taken place the application for maintenance was maintainable and not barred on ground of res judicata.
sh
10. In the present case also the Family Court has to consider e in the light of the above, if any, change in the circumstances have ad occurred for the maintainability of the application under section 125 Pr Cr.P.C. The trial Court is the Court of facts, therefore, the trial Court is at liberty to decide whether there is any change of circumstances the a second application is maintainable or not.
hy
11. With this observation this petition is dismissed.
ad (SUSHIL KUMAR PALO) M JUDGE of rt Digitally signed by RAJESH T MAMTANI ou Date: 2018.02.21 16:24:05 +05'30' RM C h ig H