Kerala High Court
Narayana Kurup vs Valsala on 3 February, 2005
Equivalent citations: 2005CRILJ3266, II(2005)DMC266, 2005(2)KLT199
Author: M. Sasidharan Nambiar
Bench: M. Sasidharan Nambiar
JUDGMENT M. Sasidharan Nambiar, J.
1. The interesting question to be decided in the revision is whether the dismissal of a petition filed under Section 125 of Cr.P.C. claiming maintenance debars the wife forever from claiming maintenance by a second application under Section 125 of Cr.P.C. The facts relevant for the case is as follows:-- Petitioner is the husband and respondent his wife. They are Hindus. Their marriage was solemnised on 23.5.1975. Two children were born in that wedlock. Respondent had filed M.C. No. 7/80 before Judicial First Class Magistrate, Quilandy claiming maintenance under Section 125 of Cr.P.C. Petitioner had claimed maintenance for herself as well as their two children who were then aged 21/2 years and 8 months. As per order dated 17.12.1980 learned Magistrate on the evidence adduced granted maintenance at the rate of Rs. 75 for the eldest child and Rs. 50 per month for the second child. The claim for maintenance by the respondent wife was rejected on the ground that there is no justifiable ground for her to live away from the husband and claim maintenance. Respondent had justified her claim for separate residence on the ground that petitioner was treating her with cruelty and also on the ground that petitioner is having relationship with a lady by name Leela. The learned Magistrate found that the said case was not proved by evidence. Respondent subsequently filed M.C. No. 268/95 before the Family Court, Kozhikode on 17.7.1995 claiming maintenance under Section 125 Cr.P.C. Reiterating the earlier allegation of cruelty it was contended that after the rejection of her claim by the learned Magistrate, petitioner did not attempt to get the respondent with him and instead married Leela (the very same Leela alleged to be the concubine in the earlier M.C. No. 7/80) and begotten three children. It was also alleged that petitioner is residing with the said Leela in the same house and therefore she is entitled to get maintenance from the petitioner. Respondent also contended that petitioner is having business in sale of coconut and has also acquired three properties and is getting not less than Rs. 20,000 per month from those properties and she is therefore entitled to maintenance at the rate of Rs. 500 per month. Petitioner resisted the claim on the ground that as the earlier petition filed by the respondent was dismissed, she is not entitled to file a second application and therefore respondent is not entitled to the maintenance prayed for. Petitioner has also denied the case of the income alleged by the respondent. No evidence was adduced by the parties and on the side of the respondent Ext.B1 voters list and Exts.B2 to B4 extract of admission register issued from the school were marked. The Judge of the Family Court on this evidence found that M.C. No. 7/80 filed by the respondent for maintenance earlier was dismissed for her failure to adduce evidence to prove justifiable ground for her separate residence and the position is now different and Ext.B1 voters list shows that Leelamma is the wife of the petitioner and Exts.B2 to B4 establish that the said children were born to the petitioner in Leelamma and therefore respondent established that petitioner is living with Leelamma as husband and wife and therefore respondent is entitled to live away from the petitioner and claim for maintenance. Holding that petitioner is a businessman and would definitely have an income of not less than Rs. 3000 per month, granted maintenance at the rate of allowance of Rs. 500 per month which is challenged in the revision.
2. The argument of the learned counsel appearing for the petitioner relying on the decisions in Mohammad Safi v. State of West Bengal (AIR 1966 SC 69), Vareed Porinchukutty v. State of Kerala (1971 KLT 204), Balakrishnan v. Rajamma (1979 KLT 502), C.G. Balakrishnan v. Income Tax Officer (1988 (1) KLT 192), E.K. Thankappan v. Union of India (1990 (1) KLJ 631), Nanu v. Vasantha (1984 KLT 382) and in Mutesari v. Nanekumar Singh (1916 Vol. 17 Crl.L.J 106) argued that the principles of res judicata is applicable to a petition filed under Section 125 of Cr.P.C. and therefore the dismissal of M.C. No. 7/80 bars a subsequent petition for maintenance and on that sole ground the order of maintenance is to be set aside.
3. Section 125(1) of the Code of Criminal Procedure enables a wife who is unable to maintain herself upon proof of negligence or refusal by the husband who is having sufficient means to claim monthly allowance for maintenance. Sub-section (4) of Section 125 mandates that no wife shall be entitled to receive an allowance for maintenance from her husband, if she is living in adultery or if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. Sub-section (5) enables the husband on proof that the wife in whose favour an order has been made is living in adultery, or that without sufficient reason she refuses to live with her husband or that they are living separately by mutual consent, to get the order of maintenance cancelled. Section 125 does not contain a provision prohibiting a wife who is unable to maintain herselves from claiming maintenance on the ground that her earlier claim for maintenance under Section 125 was disallowed by the Court. The argument of Advocate Sri. V.V. Asokan, learned counsel for the petitioner is that principles of res judicata is applicable even in criminal proceedings and as the claim of the petitioner was disallowed earlier the said order of dismissal debars her from claiming maintenance once again. Section 125 of the Code do not support the argument advanced by the learned counsel. Sub-section (5) of Section 125 enables a husband to get an order of maintenance cancelled, if he could adduce evidence and prove that the wife in whose favour an order has been made earlier for maintenance that she is living in adultery or that the wife without sufficient reason refuses to live with him or that the husband and the wife are living separately by mutual consent. It is pertinent to note that these are identical grounds to reject a claim for maintenance made by the wife under Sub-section (4) of Section 125. Sub-section (4) reads:
"No wife shall be entitled to receive an allowance (for the maintenance or the interim maintenance and expenses of proceeding, as the case may be) from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."
It is therefore clear that a husband is entitled to resist the claim for maintenance raised by the wife either on the ground that the wife is living in adultery or on the ground that without any sufficient reason the wife refuses to live with him or on the ground that they are living separately by mutual consent. When the husband fails to establish that the wife is living in adultery or the husband and wife are living separately by mutual consent or that the wife proves that she has sufficient reason to refuse to live with him, an order of maintenance has to be granted provided the wife is unable to maintain herself and the husband is having sufficient means to maintain her. Even in such a case, Sub-section (5) enables the husband to approach the Court once again for cancellation of the earlier order granting maintenance. If the husband could establish that the wife to whom maintenance was awarded is living in adultery or she refuses to live with him without sufficient reason or that they are living separately by mutual consent, the Magistrate shall cancel that order. Therefore the fact that the claim for maintenance by the wife was allowed earlier will not debar the husband from approaching the Court for cancellation of that order under Sub-section (5). The question is whether a wife whose claim for maintenance Was rejected on any of the grounds provided in Sub-section (4) is to be treated differently and the doors of justice is to be closed to her for ever. While appreciating this aspect, it is necessary to bear in mind the purpose for which Section 125 was enacted. Section 125 was enacted to provide a swift and cheap remedy for a neglected wife, child or parent who is unable to maintain themselves. The primary object of the Section is to prevent starvation and vagrancy. If so, the fact that the claim for maintenance originally raised was rejected by the Court on her failure to establish the grounds as envisaged under Sub-section 4 cannot debar her from claiming maintenance for ever. Sub-section (4) enables the wife to claim maintenance from her husband even if she is living separately from her husband, if there are sufficient reason for her separate residence. Even in such a case the husband, is granted the right to approach the Court subsequently under Sub-section (5) to get the order cancelled on establishing any of the said three grounds. Sub-section (5) reads:
On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
If that be so, can a wife who is unable to maintain herself be prevented from claiming maintenance on establishing that she is living away from her husband for sufficient reason. Especially when the husband is given such a right under Sub-section (5) the wife cannot be treated differently. Sub-section (5) can come into play only if an order of maintenance is passed in favour of the wife and in such circumstance the wife cannot be without a remedy to claim maintenance, even if her attempt to claim maintenance earlier was not successful for her failure to establish sufficient reason for her separate residence. A wife who is unable to maintain herself cannot be put to a more disadvantage position than her husband. Therefore I cannot agree with the argument of the learned Counsel appearing for the petitioner that under no circumstance, a second application for maintenance will lie, when the original application was rejected by learned Magistrate or the Family Court.
4. Looking at the position from different angle also persuade me to arrive at the same decision. For illustration take the case of a wife who claimed maintenance justifying her separate residence on the ground of cruelty. On her failure to prove the alleged cruelty justifying her separate residence the Court dismisses her claim for maintenance. The wife was persuaded to live with the husband and while so he started treating her with cruelty. Due to the physical assault, the wife has to be hospitalised. If the said cruelty could be established by cogent and satisfactory evidence can we say that because of the earlier decision dismissing the claim for maintenance on her failure to prove the cruelty on the earlier occasion, her claim for maintenance is closed for ever. It cannot be. Consider another claim for maintenance by the wife which was rejected on her failure to prove that the husband has sufficient means, though there was evidence to prove that there is sufficient justifiable ground for her separate residence. Later the husband either gets a good employment or goes abroad and earns reasonable and sufficient income. Can we say that the wife is not entitled to approach the Court for maintenance and prove that the husband has the means to pay her maintenance. Can we say that the doors of justice is closed for ever to that poor lady. If so, the fact that a claim for maintenance was earlier rejected by the Court, cannot be a sole ground to reject a subsequent application for maintenance.
5. A learned Single Judge of this Court in Vareed Porinchukutty v. State of Kerala (1971 KLT 204) (supra) has considered the application of principles of issue ' estoppel and its limitations in a criminal trial with reference to Section 403 of the old Code of Criminal Procedure corresponding to Section 300 of the present Code. The learned Judge on discussing decisions of various High Courts and the Apex Court held that principles of issue estoppel has come to stay as part of the criminal law as in some other Commonwealth countries and America and the principle is that where an issue has been decided in a particular manner in a previous trial between the same parties, it cannot be allowed to be reagitated and it is really an extension or by product of the doctrine of res judicata. The Calcutta High Court in Muteswari v. Nand Kumar Singh (1916 (Vol. 17) Crl.L.J. 106) (supra) has considered the effect of rejection of a claim for maintenance under Section 488 of the old Code, corresponding to Section 125 of the present Code. The Division Bench held that when a final order was passed on the claim for maintenance, the wife is not entitled to claim maintenance again by a separate petition. But the principles for arriving at the conclusion was not stated in that decision. A learned Judge of this Court (as his Lordship then was) in C.G. Balakrishnan v. Income Tax Officer (1988 (1) KLT 192), and in E.K. Thankappan v. Union of India (1990 (1) KLJ 631) (supra) has also considered the applicability of principles of res judicata in criminal proceedings. In the former case (C.G. Balakrishnan v. Income Tax Officer (1988 (1) KLT 192) (supra), the learned Single Judge held that general principles of res judicata are applicable in criminal proceedings. In the latter decision (supra) the learned Judge considered the effect of dismissal of a Crl.M.C. filed for quashing the proceedings earlier to a fresh Crl.M.C. The learned Judge found that the order in Crl. M.C. was passed in the very same proceedings. Relying on the decision of the Apex Court in State of Rajasthan v. Tarachand Jain (1973 SCC (Crl.) 774) that a decision of the High Court in revision is binding on the same High Court at a subsequent stage of the proceedings and also the decision of the learned Single Judge of this Court in Vareed Porinchukutty v. State of Kerala (supra), His Lordship held that when a issue has been decided in a particular manner in a previous trial between the same parties and the earlier findings in Crl.M.C. in the very same proceedings is binding on the accused and he cannot be allowed to reagitate the same question in another Crl.M.C. proceedings. The Apex Court in Bhagat Ram v. State of Rajasthan ((1972) 2 SCC 466) declared that the principles of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. The Apex Court in Bhagat Ram v. State of Rajasthan (supra) has considered the principle with reference to Section 403 of the Code (old). Their Lordships held that the plea of autre fois acquit as a bar to the prosecution embodied in Section 403 of the Code of Criminal Procedure is based upon the said, wholesome principle. The following observation of Lord MacDermott was quoted with approval.
"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maxim res judicata proveritate ascipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of the verdict and was precluded from taking any steps to challenge it at the second trial."
The above observations were quoted with approval by the Apex Court in the case of Pritam Singh v. State of Punjab (AIR 1956 SC 415).
6. A Single Judge of this Court has considered the effect of a dismissal of an earlier petition for maintenance in a subsequent application for maintenance by the wife in Nanu v. Vasantha (1984 KLT 382). In that case the wife had earlier filed a petition for maintenance while they were living separately which was disallowed holding that wife has no justifiable reason to refuse to live with the husband. The husband had filed an O.P. before the Civil Court for Restitution of Conjugal Right and though it was ordered the wife refused to live with the husband. The husband filed an O.P. for divorce which was also granted. The wife thereafter filed another petition before the Magistrate under Section 125 of Cr.P.C. claiming maintenance. The petition was resisted by the husband contending that as the earlier petition was rejected, she is not entitled to claim maintenance once again. It was contended before this Court that if at all the wife could file a petition under Section 127(2) of the Code of Criminal Procedure whereunder the Magistrate is empowered to cancel or vary an order of maintenance granted earlier in consequence of the decision of competent Civil Court. It was also contended before the learned Single Judge that as the principles of res judicata is applicable to criminal proceedings including a proceeding for maintenance under Section 125 Cr.P.C., the second application is to be dismissed. The learned Judge found that the status of the lady in the first application when her claim was rejected was as wife and when she filed the second application it was that of the divorced wife and therefore she is entitled to claim maintenance even though her application for maintenance as a wife was rejected earlier.
7. The settled position is that the general principle of res judicata are applicable to criminal proceedings by virtue of autre fois acquit embodied under Section 300 of the Code. But that does not mean that dismissal of a claim for maintenance will debar the wife from claiming maintenance from her husband forever. The decisions relied on by the learned counsel appearing for the petitioner does not go against the view that the dismissal of a claim for maintenance will not operate as a bar for claiming maintenance by the wife forever. If there is justifiable reason for her refusal to live with her husband which is different and distinct from the one propounded at the time of claiming maintenance earlier, the fact that it was rejected by the Court will not bar the claim for maintenance subsequently.
8. That exactly is the case herein. When the petitioner claimed maintenance in M.C. No. 7/80, she justified her separate residence and refusal to live with the husband on the ground of cruelty and also on the ground that the husband had illicit relationship with another lady. Her claim was then rejected on her failure to prove either the cruelty or the alleged conduct of the husband. The ground now advanced by the wife to justify her separate residence and the refusal to live with the husband was that subsequent to the dismissal of M.C. No. 7/80 the husband started to live with that lady under the same roof and petitioner had begotten three children in that relationship. The wife has also produced the certified extracts of the admission register establishing that petitioner is the father of those children born to Leela and also the voters list were that Leela is shown as his wife. In spite of the specific and unambiguous allegation is the petition filed by the wife that the subsequent to the dismissal of M.C. No. 7/80 petitioner started living with that lady in the same house and three children were born to the petitioner in her, petitioner did not deny that fact in the objection.
The position is therefore absolutely clear. Petitioner is not disputing that fact. If so, first respondent is fully justified in refusing to live with the petitioner as he is living with another lady and has also begotten three children in her. Therefore the ground for refusal to stay with the husband in the application for maintenance which was rejected by the Court below earlier, is not the same ground which is agitated in the present application. The present claim therefore cannot be rejected on the ground of dismissal of the earlier claim. The Court below rightly granted maintenance.
9. The petitioner was directed to pay maintenance at the rate of Rs. 500 per month. The quantum of maintenance was not challenged at the time of argument in the revision. The finding of the Court below is that petitioner being a businessman would definitely earn not less than Rs. 3000 per month and therefore he is capable of paying Rs. 500 per month. It cannot be disputed that the maintenance awarded may not be sufficient for the needs of the respondent at the present inflationary price of essential commodities. But the maintenance allowance awarded is within the means of the petitioner.
Criminal Revision Petition therefore fails and is dismissed.