A second application for maintenance under section 488 of the Criminal Procedure Code is not maintainable when an earlier application has been heard and adjudicated upon on merits, and the general principles of res judicata apply to proceedings under section 488 of the Criminal Procedure Code.

Headnote:
MAINTENANCE - SECTION 488 OF THE CRIMINAL PROCEDURE CODE - SECOND APPLICATION - MAINTAINABILITY - RES JUDICATA - GENERAL PRINCIPLES - APPLICABILITY - NEW FACTS - NECESSITY.
Fact of the Case:

The applicant husband challenged the order of the Judicial Magistrate, First Class, Nagpur, holding that the second application for maintenance filed by the non-applicant wife was maintainable under law. The wife had earlier filed an application under section 488 of the Criminal Procedure Code for grant of maintenance in the Court of the Judicial Magistrate, First Class, Wardha, wherein the learned Magistrate had ordered the husband to pay maintenance to the wife and their child. The wife filed a second application in the Court of the Judicial Magistrate, First Class, Nagpur, alleging that the husband was irregular in making the payment of maintenance and had not paid any amount for the last three years.
Finding of the Court:

The court held that the second application filed by the wife was not maintainable as it was barred by the general principles of res judicata. The court observed that the wife had not alleged any new facts in the second application and that the averment that the husband was irregular in making the payment of maintenance did not amount to new facts. The court further held that the Judicial Magistrate, First Class, Nagpur, could not sit in appeal over the order already passed by the Judicial Magistrate, First Class, Wardha, and that the second order would not have the effect of setting aside the earlier order.
Issues: 1. Whether a second application for maintenance under section 488 of the Criminal Procedure Code is maintainable when an earlier application has been heard and adjudicated upon on merits? 2. Whether the general principles of res judicata apply to proceedings under section 488 of the Criminal Procedure Code?
Ratio Decidendi: 1. A second application for maintenance under section 488 of the Criminal Procedure Code is not maintainable when an earlier application has been heard and adjudicated upon on merits. 2. The general principles of res judicata apply to proceedings under section 488 of the Criminal Procedure Code.
Final Decision: The revision application was allowed, and the application filed by the wife in the Court of the Judicial Magistrate, First Class, Nagpur, was dismissed.

JUDGMENT - M.D. KAMLI, J.:---This revision application filed by the applicant husband is directed against the order dated 20-4-1977 passed by the Judicial Magistrate, First Class, III Court, Nagpur, in Misc. Criminal Application No. 789 of 1975, holding that the second application for maintenance filed by the non-applicant No. 1 wife was maintainable under law.

2. The facts giving rise to this application are as follows :---The non-applicant No. 1 is legally married wife of the applicant. Their marriage took place at Nagpur in 1962. Two daughters were born to them. The elder is living with the sister of the present applicant and the younger daughter i.e. non-applicant No. 2 is living with non-applicant No. 1 at Nagpur. The non-applicant No. 2 had filed an application under section 488 of the Criminal Procedure Code for grant of maintenance in the Court of the Judicial Magistrate, F.C., Wardha wherein the learned Magistrate had ordered that the applicant husband should pay Rs. 40/- to the non-applicant No. 1 and Rs. 10/- to non-applicant No. 2 per month from the date of the order.

3. In her second application filed in the Court of the Judicial Magistrate, F.C., III Court at Nagpur, which gives rise to this revision application. The non-applicant No. 1 alleged that the applicant is very irregular in making the payment of the maintenance allowance and every time she has to approach the Court for getting the arrears of maintenance and that the applicant has not paid maintenance amount to her since last three years. Non-applicant No. 1 further alleged that the applicant husband is now residing at Etapalli, District Chandrapur, with another woman namely, Malti and does not care to maintain the non-applicant. She alleged that the applicant is a Government servant being a Wireless Operator and is drawing Rs. 450/- per month. It was also alleged by her that she is residing with her parents at Nagpur, she has no other source of income and, therefore, she is unable to maintain herself and her child non-applicant No. 2 and hence she prayed for maintenance allowance of Rs. 250/- per month for her own maintenance and that of non-applicant No. 2.

4. The applicant filed his say at Exhibit 5 to the aforesaid application. Contending therein that the order of maintenance passed under section 488 of the Criminal Procedure Code by the Court of the Judicial Magistrate, First Class, Wardha in favour of the non-applicants operated as res judicata; that the application was, therefore, misconceived and was liable to be dismissed.

5. The non-applicant No. 1 filed her reply to applicants aforesaid say at Exhibit 5, alleging therein that inspite of the order of the Judicial Magistrate, First Class, Wardha the applicant did not pay maintenance for a period of several years and hence she has a fresh cause of action and therefore, her second application file in the Court of the Judicial Magistrate, First Class at Nagpur was is not barred by principles of res judicata. She contended that the applicant has filed say, Exhibit 5, with an intention to delay the proceedings.

6. On hearing the arguments advanced on behalf of the both the parties, through their respective Counsels, the learned Judicial Magistrate, First Class, III Court, Nagpur, held that the second application filed by the non-applicant No. 1 on behalf of herself and non-applicant No. 2 was maintainable under law. He rejected the contention advanced on behalf of the applicant that the second applicant for grant of maintenance allowance was barred by res judicata or general principles of res judicata being aggrieved, the applicant has preferred this application in revision.

7. In coming to the conclusion that the second application of non-applicants was not barred by the general principles of res judicata the learned Magistrate placed reliance upon the provisions of sections 126 and 127 of the new Criminal Procedure Code (hereinafter referred to as the Code). He also relied upon some observations in a cas

Click Here to Read the rest of this document