Bombay High Court
Sou. Janabai vs Krishna Ravba Rithe And Another on 9 April, 1992
Equivalent citations: (1992)94BOMLR533, 1993CRILJ1183
JUDGMENT
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 8th August 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 aries 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 of 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 7th April 1987. She contended that the annual income of the 1st Respondent was between Rs. 2,000/- to Rs. 2,500/- (Rs. 20,000/- to Rs. 25,000/-). She prayed for maintenance at the rate of Rs. 50/- p.m.
4. By judgment and order dated 31st July 1968, the learned Judicial Magistrate, First Class, Wai, was pleased to hold that the petitioner failed to prove that the 1st Respondent was having sufficient means and had neglected or refused to maintain the applicant. He further found that the petitioner failed to prove that the 1st Respondent had contracted a second marriage with Krishnabai. He disbelieved the cases of the petitioner about ill-treatment both on the ground of refusing to grant consent to the second marriage and on the ground that she was not good looking as she has lost her one eye. Consistent with these findings, he dismissed the application with no order as to costs.
5. A period of almost 17 years elapsed after the dismissal of the aforesaid application. It was on the 1st February 1985 that the petitioner filed in the Court of the Judicial Magistrate, First Class, Khandala, Misc. Application No. 8 of 1985 under section 125 of the Code of Criminal Procedure, for maintenance. In this application, the petitioner reiterated the facts leading to the dismissal of her application. She thereafter averred that the petitioner time and again sent messages to the 1st Respondent for taking her back for the purposes of cohabitation. She further averred that the father of the 1st Respondent expired some 5 to 6 years prior to the filing of the application. At that time, the petitioner and her father had gone to the house of the 1st Respondent for the lasts rites. At that time, the petitioner as also her father through themselves as also through third parties requested the 1st Respondent to accept the petitioner for cohabitation. The 1st Respondent, however, declined and stated to the effect :-
The Court has not given you maintenance. The Court has rejected your claim for maintenance. I, therefore, do not owe you anything. My second marrital life with Krishnabai is running smoothly. You can, therefore, not come to me.
So saying the 1st Respondent refused to cohabit with the petitioner and sent her back. The petitioner further averred that prior to about 4 months, she herself went to the house of the 1st Respondent by way of a last efforts for the purposes of cohabitation. At that time, Krishnabai the second wife of the 1st Respondent insulted the petitioner and the 1st Respondent forced the petitioner to return to her maternal abode. The petitioner then averred that she on 11th December 1984 and 1st January 1985 sent her Advocate's notices calling upon the 1st Respondent to cohabit. The 1st Respondent, however, refused to accept the notices. The petitioner thus made repeated efforts to cohabit with the 1st Respondent. The 1st Respondent, however, refused merely on the ground that the petitioner's earlier application for maintenance was rejected and despite the second marriage no harm was done to the 1st Respondent. The 1st Respondent has refused to maintain the petitioner and has also refused to provide for her clothes and food. The petitioner has thereafter averred that her parents have become old. It has become difficult for them to maintain the petitioner. The petitioner has no means for her maintenance. The petitioner has finally averred that the 1st Respondent owns 20 to 25 acres of agricultural lands which are both Bagayat and Jirayat. He earns an income of Rs. 20,000/- to Rs. 25,000/- per year. It is, therefore, easy for the 1st Respondent to provide maintenance to the petitioner in the sum of Rs. 200/- per month.
6. The 1st Respondent resisted the application contending that the same is not maintainable in view of the dismissal of the previous application. According to him, the petitioner never came to reside with him after the decision in the earlier application. He raised the bar of res judicata. He denied that he ill-treated the petitioner and drove her out of the house. According to him, she left on her own accord. He contended that he did not have sufficient means to pay separate maintenance to the petitioner. He prayed for the dismissal of the application.
7. The true test to determine whether the application is barred by res judicata is to find out whether the latter application has been filed on the same set of facts that existed at the time of the filing of the earlier application. If there have been no change of facts or circumstances and the second application is based on the very same facts and the very same averments which were contained in the earlier application, the latter application can be said to be barred by res judicata. If, however, the latter application is based, not on the same fact as those existed at the time of the prior application, but on subsequent fresh facts or changed circumstances, the latter application cannot be hit by res judicata.
8. A reference may be made to the case of Sunanda Chandrakant Karanjkar decided by this Court (S. W. Daud, J.) 1988 Mah LJ 610 : (1985 Cri LJ 358). In that case an application for maintenance was dismissed by the trial Magistrate and the dismissal was confirmed in revision. A few years thereafter, the wife averring change in circumstances filed a fresh application for maintenance. The Court held that the fact that the wife had failed in the first application did not mean that she was for ever disentitled to claim maintenance. It was held that passage of time and certain supervening events having taken place, the application for maintenance was maintainable and not barred on the ground of res judicata. There had been the change in the time and certain supervening events had taken place. Passage of time, happenings of events and change in the circumstances in which the wife claim for maintenance have to be appraised. After the disposal of the 1st application the husband moved two petitions to relieve himself of the marrital tie - one for divorce and the other for declaration of nullity of marriage. Both the petitions failed. This was the background in which the second application for maintenance had to be decided. After-all a tie of marriage subsisted and the fact that the wife had failed in the first application did not mean that she was for ever disentitled to claim maintenance. In these circumstances, it was held that the application was maintainable on account of change in the circumstances removing the bar of res judicata.
9. In the instant case, I find that he petitioner has come to the Court for claiming maintenance not on the same set of facts and circumstances that prevailed on the date of the prior application, but she has come with subsequent and changed facts and circumstances which have given rise to a fresh cause of action. It is undisputed that the marital tie between the petitioner and the 1st Respondent continues to subsist. The petitioner has averred that after the dismissal of the prior application, she made repeated effort to resume cohabitation. When the father of 1st Respondent expired, she in the company of her father went to the house of the 1st respondent. At that time fresh efforts were made for cohabitation. By way of last effort, the petitioner herself went to the house of the 1st Respondent and tried to cohabit with him. She was insulted and humiliated by Krishnabai, the second wife of the 1st Respondent and the petitioner was turned away. The petitioner two notices through her advocate, but the 1st Respondent refused to accept them. The parents of the petitioner have since grown old. It is, therefore, no longer possible for them to provide for and maintain the petitioner. Despite the petitioner's desire to cohabit, the 1st Respondent has declined to accept the petitioner since he has a second wife residing with him. The 1st Respondent has 20 to 25 acres of land and has an earning of Rs. 20,000/- to Rs. 25,000/- per annum. The evidence of the petitioner further shows that the second wife of the 1st Respondent has since given birth to three children. In these circumstances, I am constrained to hold that the present application for maintenance is filed on fresh and changed facts and circumstances. The same is, therefore, not hit by the principles of res judicata. The present application is, therefore, maintainable in law.
10. My attention was drawn to two cases decided by this Court, Baburao Akaram Kalaskar v. Kusum Baburao Kalaskar, 1980 Mah LJ 871 (S W. Puranik J.) and Murlidhar Chintaman Waghmare v. Pratibha Murlidhar Waghmare, 1985 Mah LJ 958 : (1986 Cri LJ 1216) (B. G. Kolse Patil J.). In my view neither of the aforesaid cases has any bearing on the facts of the present case. In both those cases, the application under Section 125 of the Code of Criminal Procedure was heard and decided after the decision of the Civil Court in petitions either under Section 10 of the Hindu Marriage Act or under the Hindu Adoption and Maintenance Act, 1956. It was held that the proceedings in the Civil Court are sub-stantial proceedings whereas the proceedings under Section 125 of the Code of Criminal Procedure are of a summary nature. Where the Civil Court of a competent Jurisdiction comes to the conclusion that the wife was not entitled to maintenance, the Criminal Court cannot on the same set of facts come to a contrary finding. Where no change in circumstances of the parties in the intervening period exist the decision of the Civil Court bearing on the facts which have undergone on change would be squarely binding on the proceedings under section 125 of the Code of Criminal Procedure.
11. A reference was also made to the case Vithalrao Marotrao Awadhut v. Ratnaprabha Awadhut decided by this Court (M. D. Kambli, J.) 1987 Mah LJ 393 : (1978 Cri LJ 1406 (Bom)). There the wife accused an order of maintenance at Rs. 40/- per month in the Court at Wardha. She later applied again in a Nagpur Court for maintenance at enhanced rate. The second application was held to be barred under the Principles of res judicata. For alteration of the amount of maintenance, an application had to be made to the Magistrate who passed the previous order and not to a Magistrate of another Court. Where an application for maintenance has been heard and adjudicated upon on merits, it would be against the general principles of rule of res judicata to entertain subsequent application on the same facts until special circumstances are pleaded and proved. As the provisions of Section 126, Criminal Procedure Code, 1973, cannot be interpreted to mean that a wife will be able to file a fresh application on the same facts every time she changes her residence, any alteration in the amount of maintenance can be made only by an application to the same Magistrate who passed the previous order. The remedy is not by filing a fresh application for maintenance in the Court of another magistrate having co-extensive jurisdiction. The second application being substantially on the same facts was held to be barred by res judicata.
12. In my view, the above case can have no application to the facts of the present case. All that was emphasised in the case was that the second application in different Court based on the same facts could not be justified merely on account of change of the residence of the wife. For claiming chanced maintenance, an application was required to be made in the same Court which had granted maintenance in the first instance and not to a Court of co-ordinate jurisdiction.
13. As already noted, in this instant case the petitioner has come to the Court on fresh facts and circumstances. Various events have intervened between the disposal of the earlier application and he filing of the present application. I have already enumerated the fresh facts and circumstances which have intervened. The same need on repetition. In view of the aforesaid changed facts and circumstances, I am constrained to hold that the present application is maintainable and not barred by the principles of res judicata.
14. Both the trial Court as also the revisional Court have dismissed the application solely on the ground of res judicata. No findings have been given on the merits of he claim of the petitioner for maintenance. The Courts have not adverted to the evidence on record and have not given findings in respect of the issues that arise on the pleadings between the parties. It would, therefore, be necessary to remand the matter back to the trial Magistrate with a direction to hear the parties afresh and give findings on all the issues arising on the pleadings of the parties. The Court will re-appraise the evidence and re-hear the parties on the merits of the rival contentions and, thereafter proceed to dispose of the application on its own merits and in accordance with law as far as possible within a period of six months. Rule made absolute in the above terms. The 1st Respondent will pay the petitioner the costs of this petition. Issue of Certified coy is expedited.
15. Ordered accordingly.