ORDER

This Petition under Article 226 of Constitution of India has been filed seeking following reliefs:

“(i) Hon’ble Court may kindly be pleased to call the record relating to the case and after perusal of the same, order impugned passed on 24-07-2012 Annexure P/1 may be quashed.

(ii) Any other suitable relief deemed fit in the facts and circumstances of the case may also be granted together with the cost of 2 W.P. No.19364/2012 this petition.”

2. It is submitted by counsel for petitioner that respondent had filed an application under Section 125 of Cr.P.C. for grant of maintenance. The said application was allowed by order dated 30.04.2012 and the appeal filed by the petitioner has also been dismissed by the impugned order dated 24.07.2012 passed in Criminal Case No.55/2012. It is submitted that a monthly maintenance of Rs.1,500/- has been awarded to the respondent. It is submitted by counsel for petitioner that although, the order under Section 125 of Cr.P.C. was passed by Gram Nyayalaya but in fact no notification was issued for District Mandla and thus Gram Nyayalaya was not established for District Mandla and therefore the application should not have been allowed. It is further submitted that earlier also, the respondent had filed an application under Section 125 of Cr.P.C. and the same was dismissed by the trial Court on the ground that respondent is able to maintain herself and under these circumstances, the Court below should not have awarded a monthly maintenance of Rs.1,500/- Per contra, the petition is vehemently opposed by counsel for respondent. It is submitted that it is clear from the cause title of order dated 30.04.2012,it was passed by Gram Nyayalaya, Mandla/JMFC, Mandla in Miscellaneous Case No.58/2011. If the petitioner is of the view that in absence of any notification for Mandla, Gram Nayayalaya was not established for Mandla, still the Presiding Officer has passed the order in the capacity of JMFC, Mandla who was competent to entertain an application under Section 125 of Cr.P.C.

4. It is further submitted that the principle of res judicata would not apply to the proceedings under Section 125 of Cr.P.C. and if a wife at a 3 W.P. No.19364/2012 later stage becomes unable to maintain herself, then the application under Section 125 of Cr.P.C. is maintainable.

5. Heard the learned counsel for the parties.

6. Undisputedly, the first application filed by the respondent under Section 125 of Cr.P.C. was rejected on the ground that she is able to maintain herself. However, in the repeat application, it was submitted by respondent that her first application was rejected in the year 2004 on the ground that she is able to maintain herself. At that time, her parents were alive and now the respondent is all alone in the world and she is getting a Destitute Allowance (fujkfJrHkRrk).

7. The moot question for consideration is as to whether a second application under Section 125 of Cr.P.C. is maintainable or not.

8. A coordinate Bench of this Court in the case of LeelaBai v. Mohan Lal decided on 01.01.1987 in Cr.R.No.18/1987 has held that second application under Section 125 of Cr.P.C. can be made if earning does not remain sufficient.

9. In the present case, the respondent has specifically pointed out that with passage of time the things have changed and now she is not able to maintain herself.

10. It is the case of respondent that petitioner has re-married. The JMFC, Mandla after considering the totality of facts and circumstances of the case has come to a conclusion that the respondent is unable to maintain herself and therefore awarded a maintenance amount of Rs.1,500/- per months.

11. Admittedly, the respondent is the legally wedded wife of the petitioner. Whether the petitioner is having any income or not is not material for the purposes of adjudicating as to whether the wife is 4 W.P. No.1