JUDGMENT - S.M. DAUD, J.:---This petition impugns the reversal of an order for maintenance passed in favour of the petitioner in proceedings initiated under section 125 read with section 127 of the Code of Criminal Procedure, 1973.

2. The petitioner and respondent No. 1 are wife and man respectively, joined in that union at Chalisgaon on 31-5-1978. The marriage has been an unhappy one right from inception. The petitioner instituted a proceeding under section 125 Cri.P.C. in the Court of J.M.F.C. at Chalisgaon, which proceeding was registered as Criminal Miscellaneous Application No. 22 of 1979. In this application, it was alleged that the husband though possessed of sufficient means had refused and neglected to maintain the wife who was not in a position to maintain herself. The husband contested that far from his not wanting the wife to live with him or maintain her, it was that lady who had deserted him soon after the marriage and had refused to return back. The learned Magistrate who learned who heard the 1979 application dismissed it and the wife's revision to the Sessions Court met with no better result. The husband having succeeded, it was now his turn to give a dose of her own medicine to the wife. He therefore filed two proceedings, one in a Court at Jalgaon and the other in a Court at Thane. The two proceedings were for a divorce and a declaration that the marriage was a nullity. Both these petitions were dismissed. The spouses being addicted to litigation, the wife now initiated Criminal Miscellaneous Application No. 6 of 1982 claiming maintenance under section 125 of the Cri.P.C. It was averred that there had been a change in the circumstances, for which reason the dismissal of the earlier application for maintenance did not operate as a bar. The husband took exception to the second application for maintenance, pleading the bar of res judicata and also that the equities were such as to disentitle the wife from claiming maintenance. Parties were examined and so far as the attitude of the husband is concerned, it is best reflected in the following passage from the judgment of the learned Magistrate :---

"In this case, the opponent (husband) is really at fault and he is misusing the provisions of law very lightly and according to him without any incident (?). He has also admitted on oath that after the petition was dismissed ...... he had never tried to take the applicant in his conjugal home. It is also position on record that he has not specifically pleaded in his say at Exh. 5 that he is ready and willing to take her at his home for his conjugal company. He has admitted in his cross-examination that his father is in Railway service and he is also working in the same Department since last 6 years. He has also admitted that he has filed petition for divorce in Jalgaon Court as applicant is not coming at his home since last 5 years but in the same breath he has also admitted that after the petition of 22/79 was dismissed, he has never tried to take the applicant at his home in his conjugal company."

The Magistrate negatived the bar of res judicata and held that the wife was entitled to maintenance at rate Rs. 100/- per month which amount was made payable unto her as from the date of application i.e. the one bearing Criminal Miscellaneous Application No. 6 of 1982. Aggrieved by the award of maintenance, the husband moved the Sessions Court at Jalgaon in revision. The revision came up before an Additional Sessions Judge. He was of the opinion that the dismissal of the first application for maintenance on merits, debarred the second application which was based on the same set of facts and circumstances as its predecessor. For this reason, he allowed the revision application and quashed the award of maintenance made in favour of the wife.

3. Having regard to the submissions made by learned Counsel, I have to address myself to the determination of the following questions :---

1. Whether the second application for maintenance was

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