The principle of res judicata does not apply to criminal proceedings under Section 125 of Cr.P.C., and compromise does not necessarily defeat the right to claim maintenance.

S.K. Awasthi, J.

1. The applicant has filed this criminal revision under Section 397 read with Section 401 Cr.P.C. against the order dated 2.7.2015 passed by Principal Judge, Family Court Vidisha in M.J.C. No.342/2014, whereby the application filed by the applicant under Section 125 of the Code of Criminal Procedure, 1973 (for brevity, the 'Cr.P.C.') has been allowed and maintenance of Rs.3000/- per month has been awarded to the respondent.

2. This matter canvassed two legal issues pertaining to the maintainability of the application under Section 125 of Cr.P.C. However, before proceeding to discuss the same, it is appropriate to briefly state the relevant facts of the case on which this matter has arrived before the Court.

3. According to the applicant, the respondent-wife in the year 2005 moved first application under Section 125 of Cr.P.C. demanding maintenance from the applicant-husband, which was contested on merits and the court below dismissed the application vide order dated 16.12.2008 on the ground that, the respondent failed to establish the fact that she is residing separately for any considerable or sufficient reason. It is submitted that rejection of this application vide order dated 16.12.2008 attained finality as the same remained unchallenged for considerable length of time.

4. Despite aforesaid, the respondent-wife resurfaced with another application under Section 125 Cr.P.C. in the year 2011, which according to the applicant was withdrawn without any liberty due to compromise which was entered into between the parties and in lieu of the same, the applicant made lumpsum payment of Rs.5.00 lacs to the respondent. Therefore, according to the applicant, the respondent waived her right under the Statute by accepting the compromise, hence she is estopped from moving any further application under Section 125 Cr.P.C.

5. As per the applicant, the respondent with intention of abusing criminal justice system moved third application under Section 125 Cr.P.C., in which the applicant was not served with any notice and he was proceeded ex parte. Further the proceedings were concluded by passing impugned order dated 2.7.2015 whereby the Court has allowed the application under Section 125 Cr.P.C. It is this order against which the instant revision application has been filed before this Court.

6. In view thereof, the sum and substance of the arguments advanced by learned counsel for the applicant is that, the impugned order is bad in law on three counts. First being that, the applicant was not afforded any opportunity to contest the application. Secondly, the application of the respondent was barred by the principle of res judicata. Thirdly, withdrawal of second application by the respondent reflects that she had entered into a compromise with the applicant and both parties agreed to reside separately. Therefore, by virtue of Section 125(4) of Cr.P.C. she is residing separately out of her own will and thus, she is not entitled to any amount from the applicant.

7. In order to bring home the second proposition regarding principle of res judicata, learned counsel for the applicant placed reliance on a judgment pronounced by the High Court of Manipur in the case of Shri Laisram Nipamacha Singh v. Smt. Khaidem Ningol Sakhi Devi and others, AIR 1965 Manipur 49.

8. Per Contra, learned counsel for the respondent submitted that for non-grant of opportunity to the applicant to contest the application, the applicant himself is to be blamed as despite of service of notice, the applicant failed to appear before the court below, secondly the principle of res judicata is not attracted to the facts of this case. Hence, the impugned order is just and proper and deserves to be upheld.

9. I have considered the rival contentions of both the parties and have perused the documents placed before the Court.

10. Before adverting to the contentions of the respective parties, it is apt to reproduce the excerpt of certain judicial pronouncements necessary f