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2003 DIGILAW 588 (GAU)

Sukumal Saha v. Prativa Das

2003-12-16

TINLIANTHANG VAIPHEI

body2003
JUDGMENT T. Vaiphei, J. 1. This is an application Under Section 482 Cr.P.C. filed by the petitioner for quashing the impugned judgment and order dated 30.1.2003 passed by the learned Judicial Magistrate, 1st Class, Agartala, West Tripura, Court No. 5, Agartala, West Tripura in Misc. No. 153 of 2000 Under Section 125Cr.P.C. granting maintenance allowance of Rs. 800/- per month in favour of the respondent No. 1 and Rs. 700/- per month to the respondent No. 2 with effect from 30.1.2003 and also the judgment dated 20.5.2003 passed by the learned Addl. Sessions Judge, Court No. 3, West Tripura, Agartala in Crl. Revision 12(1)2003 upholding the said judgment and order of the learned Judicial Magistrate. 2. The facts of the case as emerged from the pleadings of both the parties may be briefly stated. The respondent No. 1 claims that she was married to the petitioner on 7.8.1994 at her father's house at Abhoynagar according to Hindu rites and customs and that after their marriage, they started living together as husband and wife. After about six months, the petitioner shifted at a rented house at Radhanagar, Agartala and during their stay there on 8.7.1995 a son was born to them whereupon the petitioner sent the respondent No. 1 to the house of her parents. It is the case of the respondent No. 1 that since then the petitioner stopped looking after her and her minor son. It is further stated by the respondent No. 1 that after about two months, when she went to the house of the petitioner with her son, the petitioner refused to accept them and thereupon she filed an application Under Section 125 Cr.P.C. for granting maintenance to her and to her minor son. The case, which was registered as Misc. Case No. 61 of 1996, was dismissed by the learned Judicial Magistrate, 1st class on 28.6.1997. It is claimed by the respondent that due to poverty she could not preferred the revision petition against the said order. The respondent No. 1 states that she has no income to support herself and her minor son whereas the petitioner is an employee of Tripura Road Transport Corporation (TRTC) and earning a monthly salary of Rs. 4,700/-. The petitioner contested the case and filed written objection denying his marriage with the respondent No. 1. The petitioner also denies that he is the father of the minor child. 4,700/-. The petitioner contested the case and filed written objection denying his marriage with the respondent No. 1. The petitioner also denies that he is the father of the minor child. The petitioner also submits that in view of the dismissals of the earlier application in Misc. 61/1996, the second application filed by the respondent is not maintainable. 3. Heard Mr. R. Datta, learned counsel appearing on behalf of the petitioner and Mr. A.R. Barman, learned counsel appearing on behalf of the respondents. 4. On going through the materials available on record, it is an undisputed fact that the respondent had earlier filed an application Under Section 125 Cr.P.C. against the revision petitioner before the Judicial Magistrate, 1st Class, Court No. 5, West Tripura, Agartala in Misc. Case No. 61 of 1996 claiming maintenance allowance of Rs. 500 per month each for herself and for her minor son. By the judgment dated 28.6.1997, learned Judicial Magistrate dismissed the application. The said judgment is annexed to this petition at Annexure B. After perusing the said judgment and order, there can be no dispute that the said application was dismissed by the learned Judicial Magistrate on merit in which there was a categorical finding that there was no valid marriage between the revision petitioner and the respondent No. 1 herein and also that the minor child is neither the legitimate son nor the illegitimate son of the revision petitioner. As observed earlier, no revision was preferred against this judgment by the respondent No. 1. In view of this, the above findings have attained finality. 5. In the light of the aforesaid circumstances, the short question to be determined in this case is whether the subsequent application filed by the respondent No. 1 claiming maintenance allowance from the revision petitioner is maintainable. It is submitted by the learned Counsel for the petitioner that even though a proceeding Under Section 125 Cr.P.C. is not strictly a civil proceeding, the principle of res judicata is applicable to such a proceeding for which he relied a decision in Sri Laisram Nipamacha Singh v. Smt. Khaidem Ningol Sakhi Devi (AIR 1965 Gua 49). On the other hand, learned Counsel for the respondents submits that since provision in the Cr.P.C. which bars a second application, the second 125application is maintainable. On the other hand, learned Counsel for the respondents submits that since provision in the Cr.P.C. which bars a second application, the second 125application is maintainable. In support of his submission strong reliance is placed upon a decision of the Kerala High Court in Mambekkattu Nanu v. Mambekkattu Vasantha reported in. 6. I have carefully perused the judgment cited by the learned counsel for the respondents and I am of the view that the said case is distinguishable inasmuch as the question that arose for consideration in that case was whether the earlier application filed by the wife when she had a status of the wife can bar the subsequent application filed by her when she ceased to be wife and was a divorce wife on the strength of the extended definition of the expression wife occurring in explanation (b) of Section125(1). It was in that context that the Kerala High Court had held that the subsequent application was maintainable. In the instant case, the earlier application filed by the respondent was heard on merit and dismissed by the learned Magistrate after holding that she was not the wife of the petitioner and that the minor son was not the son of the petitioner. It is true that the object of Section 125 Cr.P.C. is to provide swift and cheap remedy to a wife, children, etc. against any person who despite means neglects or refused to maintain his wife and children who are unable to maintain themselves. The object being to prevent starvation and vagrancy and to compel a man to perform the moral obligation Which he owes to the society in respect of his wife and children (now parents also) so that they are not left baggared and destituted on the scrap-heap of the society and thereby driven them to a life of vagrancy and immorality and crime for their subsistence. However, the grant of maintenance allowance to the wife and the minor child is subject to proof of marriage and of paternity. Unless such a proof is forthcoming, no maintenance allowance can be granted. Nevertheless, the requirement of proof in a proceeding Under Section 125 Cr.P.C. is not strict proof as envisaged in a civil proceedings for the simple reason that the remedy is a summary one. Unless such a proof is forthcoming, no maintenance allowance can be granted. Nevertheless, the requirement of proof in a proceeding Under Section 125 Cr.P.C. is not strict proof as envisaged in a civil proceedings for the simple reason that the remedy is a summary one. But it is the contention of the Counsel for the respondents that the subsequent application filed by the respondents despite the dismissal on merit of their earlier application for maintenance is maintainable. I am afraid, this submission of the learned counsel for the respondents is somewhat alarming and is against the general principle of law which is that there must be an end to litigation, be it a summary or a regular civil proceedings. A case of somewhat similar nature has come up for consideration before the Apex Court in the case of Samir Manda v. State of Bihar reported in. In that case, the respondents had filed a criminal case Under Section 125IPC and in that proceedings, the Magistrate had recorded a finding that the respondent could not establish her marriage with the appellant. It was contended by the learned counsel for the appellant that if the marriage was not established, the question of grant of maintenance Under Section 125does not arise. The Apex Court held that if the marriage between the appellant and the respondent has not been established, then the question of grant of maintenance Under Section 125 Cr.P.C. would not arise. Accordingly, the appeal was allowed and the order of the Magistrate directing the grant of maintenance was set aside. In the instant case also, in the earlier proceeding Under Section125 Cr.P.C. between the revision petitioner and the respondent No. 1, there was already a categorical finding that the respondent No. 1 is not the wife of the revision petitioner. On the analogy of the aforesaid decision of the Apex Court, I am of the view that the subsequent application filed by the respondent claiming maintenance allowance from the revision petitioner is not maintainable. Both the Courts below have improperly exercised their jurisdiction in maintaining the subsequent application field by the respondent. 7. In the result, the impugned judgment and order dated 30.1.2003 passed by the learned Judicial Magistrate, 1st Class in Misc. 153/2000 and the judgment dated 20.5.2003 passed by the learned Addl. Sessions Judge, Court No. 3, West Tripura, Agartala in Crl. Both the Courts below have improperly exercised their jurisdiction in maintaining the subsequent application field by the respondent. 7. In the result, the impugned judgment and order dated 30.1.2003 passed by the learned Judicial Magistrate, 1st Class in Misc. 153/2000 and the judgment dated 20.5.2003 passed by the learned Addl. Sessions Judge, Court No. 3, West Tripura, Agartala in Crl. Revision No. 12(1) of 2003 are hereby set aside. However, on the facts and circumstances of the case, there shall be no order as to costs. Interim order passed earlier stands merged with this order.