Point of Law : Court is of firm opinion that even though fresh application filed by applicant under Section 125 Cr.P.C. being Criminal Misc. Application No. 387 of 2019 filed for the same relief/cause of action but the same is maintainable as principle of res judicata will not apply therein.

JUDGMENT :

(Shiv Shanker Prasad, J.)

1. Heard Mr. Naveen Kumar, learned counsel for the applicant, learned counsel for opposite party no.2 and learned A.G.A. for the State.

2. This application under Section 482 Cr.P.C. has been filed on behalf of the applicant to quash the judgement and order dated 20th May, 2022 passed by the Principal Judge, Family Court, Sonbhadra, in Criminal Case No. 387 of 2019 (Shabana Bano Vs. Aliraza), under Section 125 Cr.P.C., Police Station-Dudhi, District-Sonbhadra, whereby the application made by the applicant under Section 125 Cr.P.C. has been rejected.

The case of the Applicant

3. The factual matrix of the case in hand, which has been highlighted by the applicant is that marriage of applicant and opposite party no. 2 was solemnized on 4.5.2002 in accordance with Muslim Rites and Rituals at Dudhi, Sonbhadra and in the said marriage, about Rs. 40 lacs with Indica Car were given by applicant's family members to opposite party no. 2 for fulfilment of dowry. After marriage applicant came to her matrimonial house but after few days of her marriage, the husband (opposite party no. 2) and his family members again demanded Rs. 20 lacs from applicant's family members. From the aforesaid wedlock, three female children and a male child was born. When the family members of the applicant did not fulfill the aforesaid additional demand of dowry at Rs. 20 lacs, the opposite party no. 2 and his family members kicked out the applicant from her matrimonial house on 18.11.2013 with her children and on 2.12.2013, opposite party no. 2 sent Talaqnama to applicant. Since the applicant is unskilled housewife/ lady, she is unable to earn livelihood for herself and her children, so she filed Criminal Misc. Application No. 21/2014 (Shabana Bano Versus Ali Raza) Under Section 125 Cr.P.C. for maintaining her and her children but the said application was rejected by learned court below for want of prosecution on 1.3.2017. After rejection of the said application under Section 125 Cr.P.C., the applicant filed another application under Section 126 (2) Cr.P.C. before the Principal Judge, Family Court, Sonbhadra Being Criminal Misc. Application No. 138 of 2017, which has also been rejected/dismissed by learned Principal Judge Family Court, Sonbhadra for want of prosecution on 8th February, 2018. After that the applicant filed a fresh application under Section 125 Cr.P.C. before the Principal Judge Family Court, Sonbhadra, which has been numbered as Criminal Misc Application No. 387 of 2019 (Shabana Bano Vs. Ali Raza). This application filed by the applicant under Section 125 Cr.P.C. has again been rejected by the Family Court vide order dated 20th May, 2022 on the principle of res judicata. It is against this order that the present application has been filed.

Finding and conclusion of the Principal Judge, Family Court, Sonbhadra while passing the impugned order:

4. Before passing the impugned order, the Family Court has framed a conceptual issue whether after rejection of applications of the applicant under Sections 125 and 126 (2) Cr.P.C. for want of prosecution vide orders dated 1st March, 2017 and 8th February, 2018, fresh application under Section 125 Cr.P.C. being Criminal Misc Application No. 387 of 2019 (Shabana Bano Vs. Ali Raza) is legally maintainable or not and the applicant has the right to file a fresh application under Section - 125 of the Code of Criminal Procedure or not?

5. The Family Court has recorded in the order impugned that due to the absence of the applicant, the first application made by the applicant under Section 125 Cr.P.C. has been rejected on 01.03.2017 and the application under section 126 (2) of the Code of Criminal Procedure, has been rejected on 8th February, 2018. From the legal point of view it is apparent that all the rights have been exercised by the applicant in respect of Section-125 of the Code of Criminal Procedure before the Family Court, Sonbhadra and final decision has been taken by the