Judgment

P. N. SHINGHAL, J. :- This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14, 1974, allowing the revision application of respondent Dev Raj Vijh and dismissing the appellants application dated March 18, 1969, under Section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code.

2. Appellant Raj Kumari Vijh was married to respondent Dev Raj Vijh in Delhi, in June 1950. It is the admitted case of the parties that they were living separately from 1953. The appellant filed her first application for maintenance under Section 488 of the Code, in 1955, but it was dismissed. The respondent filed an application for divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh). It was ultimately dismissed on appeal on 29-3-1968. In the meantime the appellant filed a suit against the respondent for recovery of her "stridhan" in Delhi in 1956. It was decreed on appeal by the Delhi High Court in 1967, for Rs. 6458/-. The appellant gave a notice to the respondent on June 24, 1968, claiming maintenance as a deserted wife. Nothing came out of it and she filed the present application under Section 488 of the Code in the Court of the Delhi Magistrate on March 18, 1969. It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P. S. Narela, Delhi, towards the end of December 1968, because the respondent visited her there for a settlement and for non-execution of the decree which she had obtained for Rs. 6458/- on account of her "stridhan." It was stated in the application that the parties lived at Lampur as husband and wife and there was cohabitation. The appellant prayed for an order allowing her Rs. 450/- per month for maintenance as the respondent had sufficient means but had neglected or refused to maintain her.

3. The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur. An objection was however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of res judicata. An objection was taken to the jurisdiction of the Delhi Court on the ground that the respondent never resided permanently or temporally in Delhi. We have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed. The Magistrate passed an order for production of evidence. The respondent thereupon prayed that the question of jurisdiction may be decided before recording the evidence. That was not agreed to by the Magistrate. He made an order on November 19, 1969 that the question of jurisdiction must await the recording of the evidence on the whole case. The respondent did not challenge that order or apply for permission to file an additional reply. On the other hand, he asked for the holding of an identification parade for the purpose of showing that some of the appellants witnesses did not even known him. Both the parties led their evidence, although it appears that the respondent did not like to avail of the opportunity which was given to him to lead evidence on the merits. He did not even apply for permission to file any additional reply when the Magistrate recorded the appellants evidence on her application for maintenance as a whole.

4. Ultimately the Magistrate made his final order on May 21, 1973. He took the view that there was no specific denial of the appellants allegation that the parties last resided together, as husband and wife in village Lampur, in Delhi, towards the end of December in 1968. He took notice of the fact that the plea of bar against the maintainability of the second application because of the dismissal of the first application, was not pressed by the respondent and, after referring to the enti