JUDGMENT - ASHOK AGARWAL, J.:--The petitioner is the wife of the 1st respondent. Her application for maintenance being Misc. Appplication 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 arises 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 to 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. Acccording 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 petitoner 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. 2000/- to 2500/- (Rs. 20,000/- to Rs. 25,000/-...........Ed.). 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 case 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 r

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