The concept of res judicata does not apply in a proceeding under Chapter IX of the CrPC, which deals with maintenance, and a petitioner cannot be denied access to the court simply because her earlier prayer for maintenance was turned down.

Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 125, 126, 201(A) - MAINTENANCE - RES JUDICATA - JURISDICTION - INTERIM MAINTENANCE - GEOGRAPHICAL LIMITS - TERRITORIAL HASSLES - MAINTENANCE AWARDED TO PETITIONER AND HER SON.
Fact of the Case:

The petitioner, a woman who had been married for 22 years, filed a petition under Section 125 of the Code of Criminal Procedure (CrPC) seeking maintenance from her husband. The Chief Judicial Magistrate (CJM), Barasat, dismissed the petition on the ground that the petitioner had no reason to live separately from her husband and that the claim was barred by res judicata since an earlier award under Section 125 of the CrPC had been dismissed. The petitioner filed a revisional application challenging the CJM's order.
Finding of the Court:

The High Court set aside the CJM's order and remanded the proceeding for consideration of the petitioner's prayer for maintenance for herself and enhancement of the amount of maintenance granted in favor of the child. The court held that the concept of res judicata did not apply in a proceeding under Chapter IX of the CrPC, which deals with maintenance, and that the petitioner could not be denied access to the court simply because her earlier prayer was turned down. The court also held that the CJM erred in holding that he lacked jurisdiction to entertain the claim since the petitioner and her husband resided outside his jurisdiction, as Section 126 of the CrPC allowed proceedings under Section 125 to be taken in any district where the husband or wife resided.
Issues: 1. Whether the concept of res judicata applies in a proceeding under Chapter IX of the CrPC, which deals with maintenance? 2. Whether a petitioner can be denied access to the court simply because her earlier prayer for maintenance was turned down? 3. Whether a court has jurisdiction to entertain a claim under Section 125 of the CrPC if the petitioner and her husband reside outside its jurisdiction?
Ratio Decidendi: 1. The concept of res judicata does not apply in a proceeding under Chapter IX of the CrPC because such a proceeding is not a trial and does not involve any concept of acquittal or conviction. Additionally, the proceedings do not fall within the definition of 'offence' under Section 2(n) of the CrPC. 2. A petitioner cannot be denied access to the court simply because her earlier prayer for maintenance was turned down. A proceeding under Chapter IX of the CrPC is a continuous affair, and each day and night that the petitioner suffers constitutes a fresh cause of action. 3. A court has jurisdiction to entertain a claim under Section 125 of the CrPC if the petitioner or her husband resides within its jurisdiction. Section 126 of the CrPC allows proceedings under Section 125 to be taken in any district where the husband or wife resides.
Final Decision: The High Court set aside the CJM's order and remanded the proceeding for consideration of the petitioner's prayer for maintenance for herself and enhancement of the amount of maintenance granted in favor of the child. The court also directed that the petitioner be paid interim maintenance of Rs. 1,000/- each for herself and her son, totaling Rs. 2,000/- per month, from the date of filing of the application.

JUDGMENT

Amit Talukdar, J.: Gender Justice even if it can undo the wrong suffered by the petitioner in her matrimonial home which prompted her to move the court for maintenance under section 125 of the Code of Criminal Procedure (for brevity, the said Code) wherein she was further wronged; but, however, cannot give a healing touch to the agony suffered by her since her jinxed matrimony spread out over twenty two years.

Prayer for maintenance before the court of the learned Chief Judicial Magistrate, Barasat having been spurned on account of a lack of territorial jurisdiction and the question of res judicata has only rubbed salt to her injurious state of mind.

Since her marriage the petitioner who had expectations of floral garlands of love and affection and the warmth of a conjugal life was greeted with a ring of thomes.

Roses having given away to thomes in her jinxed matrimony the petitioner along with her hapless ward sought an oasis in her arid desert of misfortune before the court of the learned Chief Judicial Magistrate, Barasat under Chapter IX of the said Code.

What was sought to be an oasis by way of securing some succour and relief to stitch her body and soul in tune and to provide a few yarns of cloths for her and few morsels of cereals turned out to be a teasing mirage.

2. This court in this revisional application is entrusted with the job of placating the petitioner from the said mirage; if not, to her cherished oasis and to repair her distraught matrimony but at lest to soothe her gapping wounds fractured by indifference, neglect and some dead legal technicalities which have stood as a stumbling block before this weeping lady.

The hands of this court may not be long enough to wipe out the already dried out tears from her cheek but at least, can undo the wrong suffered by her in the sanctum sanctorum. At the very outset with due respect to His Honour I am unable to persuade myself to the finding arrived at by the learned Chief Judicial Magistrate, Barasat in the impugned order.

Certain basics which have gone wrong have to be repaired, in the process I am afraid the entire mechanism has to be restructured. However, is it not the ultimate Goal of Justice which should activate the court of law ?

With the said Social Mission of Law I endeavour to construe the impugned order.

3. Firstly, the ground which weighed in the mind of the learned Chief Judicial Magistrate that an earlier award on 04.4.94 under section 125 of the said Code was dismissed "on the ground that she had no reason to live separately from the husband". As such, "this ground being tried in earlier application, the present claim is barred by res judicata." This finding is wholly untenable. Just because a maintenance proceeding under section 125 of the said Code is not a Petition of Complaint within the definitional clause of section 2 of sub-clause (d) of the said Code which reads as follows:

'(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a police report.'

As such, in order to attract the mischief of the said sub-clause the sine qua non has to be commission of an offence. But a petition under section 125 under Chapter IX of the said Code which speaks of the remedial jurisdiction of the court to provide succour to the hapless wives and destitute women cannot be dubbed as a petition of complaint in the said sense it is only a summary redressal for prevention of vagrancy.

4. The concept of ‘res judicata’ is not altogether an alien concept in the Criminal Justice System. Section 403 of the said Code which is the legatee of section 403 of the old Code starts with the opening line in sub-section (1):

"A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to b

Click Here to Read the rest of this document

2001 Supreme(Cal) 584

HIGH COURT OF CALCUTTAAmit Talukdars, J.Shipra Banerjeevs.State of W. B. & Ors.C.R.R. No. 1397 of 2001Decided On: September 7, 2001

The concept of res judicata does not apply in a proceeding under Chapter IX of the CrPC, which deals with maintenance, and a petitioner cannot be denied access to the court simply because her earlier prayer for maintenance was turned down.

Cases Referred (2)

HIGH COURT OF CALCUTTA
Amit Talukdars, J.
Shipra Banerjee
vs.
State of W. B. & Ors.
C.R.R. No. 1397 of 2001
Decided On: September 7, 2001