JUDGMENT

SWARANA KANTA SHARMA, J.

1. The present Revision Petition has been filed, challenging the impugned order dated 22.09.2017 passed by learned Principal Judge, Family Court in MT-22/2015 and praying to set aside the same, whereby maintenance application filed by the Petitioner was dismissed on the ground of res judicata.

2. The brief facts of the case are that the marriage between petitioner no.1 and respondent no.1 was solemnized in the year 1990 and the parties last resided together up to January 1996. Two children were born from the wedlock; a son who has attained majority and a minor daughter. Since the time of separation, the parties have been involved in multiple litigations. Out of which one such case was filed under Section 125 Cr.P.C. in MT-22/2015. The Petition by means of the second petition under Section 125 Cr.P.C. prayed to direct the Respondent to pay a sum of Rs. 20,000/- per month in favour of Petitioner no. 1 and also to pay a sum of Rs. 10,000/- per month in favour of the Petitioner no. 2. Further by means of the Petition the Petitioners prayed for the Court to award Rs. 55,000/- towards litigation expenses in favour of the Petitioners. However, the said case was dismissed on the ground of res judicata vide the impugned order dated 22.09.2017 on the ground that prior to the filing of the said petition, the Petitioner along with her two children had filed petition Bearing No. 289/1996 under Section 125 Cr.P.C. before the court of ACJM, Gurgaon, Haryana which was decided vide order dated 16.04.1999 allowing each of the three petitioners (in the 1996 petition)

a sum of Rs. 500/- per month as maintenance.

Submission of the Learned counsels

3. It is stated by the learned Counsel for the petitioner that on the date of filing of the present petition before the learned Trial Court, the petitioner was entitled to file a fresh petition as there was a fresh cause of action. He further argued that on the date of filing the present petition before the learned Trial Court, the petitioner was not receiving any maintenance as ordered on 16.04.1999 by the learned ACJM, Gurgaon, the principle of res judicata was not attracted in the facts and circumstances of this case. He further argues that the claimants, if necessary, can file separate claims for maintenance each month. It is argued that vide order dated 16.04.1999 maintenance was granted only from the date of filing of the said claim petition. It was nowhere mentioned in the said order that it shall operate either for future or till further orders. It was also submitted by the learned counsel for the petitioner that it cannot be presumed to be operating beyond the date of decision of the Maintenance Petition No. 279/1996. It was stated that petitioner was entitled in law to claim monthly maintenance post January 2015. Section 127 Cr.P.C. is not the proper recourse, since the maintenance period claimed in the maintenance petition filed on 07.01.2015 was for claiming maintenance from January 2015 onwards. The observations made in the impugned order read as follows: -

“15. The judgment relied upon in support by both the counsels decided by Manipur High Court and Kerala High Court shall be read in the context of their factual background. In both these cases petition under Section 125 CrPC was filed a second time. In none of the two cases (Supra) the first petition filed u/s 125 Cr.P.C was decided on merits, awarding maintenance. In both these cases earlier petition filed under Section 125 CrPC was dismissed for one or the other reason as mentioned in the said judgments (Supra)|. Hence the Hon'ble High Court held in the two cases that principle of Res judicata shall not be applicable.

16. However, in the instant case, the earlier petition of the two petitioners herein for their maintenance was filed u/s 125 CrPC in the Court of ACJM (Gurgaon, Haryana and the same was allowed by the said Court awarding maintenance @ Rs500/- pm each to each the two petitioners and also to the mi