M. Sasidharan Nambiar, J.

The interesting question to be decided in the revision is whether the dismissal of a petition filed under S.125 of Cr.P.C. claiming maintenance debars the wife forever from claiming maintenance by a second application under S.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 S.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 S.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.LJ 1