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2011 DIGILAW 677 (GAU)

Md. Rahamat Ali v. Jairunnessa

2011-08-10

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. S. Deb, learned senior counsel assisted by Mr. S. Chaudhuri, learned Counsel appearing for the Petitioner and Ms. N. Guha, learned Counsel representing the Respondent. 2. The interesting question to be decided in this revision petition is whether the dismissal of a petition filed under 2 Section 125 of the Code of Criminal Procedure (for short 'Cr.P.C.') debars the wife, from claiming maintenance allowance from the husband by filing a second application under Section 125 of the Code of Criminal Procedure. 3. The facts, necessary for disposal of this revision petition, may be stated, in brief, as follows: The Respondent-wife filed an application under Section 125 of the Code of Criminal Procedure before the learned Judge, Family Court, Kailashahar, North Tripura, claiming maintenance from her husband, the Petitioner herein. The petition so filed by the Respondent was registered as Criminal Misc. Case No. 91/2008.In the said petition, the Respondent stated that the marriage between the parties took place about 22 years back, but because of torture upon her and being instigated by another wife of the husband-Petitioner, she was compelled to desert the Petitioner with her children. The Respondent claimed maintenance allowance of Rs. 1,000/- per month for herself and Rs. 500/- each per month for her four children by filing a formal application before Family Court, Kailashahar, North Tripura. The learned Judge, Family Court, Kailashahar, North Tripura, vide judgment dated 25.09.2008 in Crl. Misc. Case No. 91 of 2008, considering the entire evidence on record, rejected the prayer of the Respondent. 4. In the said application, i.e., Crl. Misc. Case No. 91 of 2008, the Respondent-wife admitted to have given birth to seven children when she was living with her husband. The Respondent wife also stated to have admitted in the said application that all the children were living with her. Having found various inconsistencies in the statement of the wife-Respondent, the prayer for maintenance allowance was rejected. 5. It has been stated on behalf of the Petitioner husband that subsequently Crl. Misc. Case No. 206/2009 was filed before the learned Judge, Family Court, Kailashahar, North Tripura on 15.12.2009, after rejection of the earlier application, i.e., Crl. Misc. No. 91 of 2008 filed under Section 125 of the Code of Criminal Procedure, wherein the Respondent-wife claimed a sum of Rs. 1,000/- per month for herself and Rs. Misc. Case No. 206/2009 was filed before the learned Judge, Family Court, Kailashahar, North Tripura on 15.12.2009, after rejection of the earlier application, i.e., Crl. Misc. No. 91 of 2008 filed under Section 125 of the Code of Criminal Procedure, wherein the Respondent-wife claimed a sum of Rs. 1,000/- per month for herself and Rs. 500/- each for her four children. 6. The Petitioner-husband contested the case by filing written objection stating therein that he was 61 years old and his earning was about Rs. 800/- per month. The Petitioner-husband also alleged that Respondent-wife filed this application on the instigation of some other people and also apprised the learned Family Judge, Family court that on 25.09.2008 in Crl. Misc. Case No. 91/2008, the prayer so made on similar situation by the Respondent-wife for maintenance, was rejected. It has been further contended by the Petitioner-husband that the Respondent-wife is a BPL Card holder and has separate mess and all the seven children have been living with her and two of them are earning. 7. Learned Judge, Family Court, Kailashahar, North Tripura recorded the evidence of the parties. It has been admitted by the parties that after 30 years of marriage, they have five sons and two daughters, who are living with the wife. The Respondent-wife also alleged that seven years before, while she was pregnant, her husband stopped giving her maintenance allowance and since then she has been living on her own. However, on consideration of the entire gamut of facts, the learned Judge, Family Court, Kailashahar, North Tripura passed the impugned order in Crl. Misc. Case No. 206 of 2009, directing payment of maintenance allowance of Rs. 500/- per month to the Respondent-wife from the date of filing of the application. 8. Mr. S. Deb, learned senior counsel for the Petitioner husband, submitted that the only question, which is required to be answered in this revision petition, is whether the second application, which has been filed by the Respondent claiming maintenance on the same ground and for the same cause of action, after a year from the date of rejection of the earlier application, is maintainable in law? 9. Learned Counsel for the Petitioner-husband submitted that by applying the principles of res judicata, the second application, claiming maintenance is barred under the law. 9. Learned Counsel for the Petitioner-husband submitted that by applying the principles of res judicata, the second application, claiming maintenance is barred under the law. Learned Counsel further submitted that 'res judicata', which is a concept of jurisprudence, is equally applicable in the criminal jurisprudence. The subsequent court, which entertained the second application under Section 125 of the Code of Criminal Procedure., is not a court of appeal. The subsequent court is a court having the same jurisdiction with the former court, which had passed the order rejecting the prayer of the Respondent-wife claiming maintenance in the first application. 10. It would be pertinent to extract herein the relevant provisions of Section 125 of the Code of Criminal Procedure in order to appreciate the arguments advanced by the learned Counsel for the parties: 125. 10. It would be pertinent to extract herein the relevant provisions of Section 125 of the Code of Criminal Procedure in order to appreciate the arguments advanced by the learned Counsel for the parties: 125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1[* * *], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: 2[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this Sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application such person.] Explanation.-For the purposes of this Chapter,- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. 3[(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, of so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance 4[for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 11. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 11. Section 125(1) of the Code of Criminal Procedure enables the wife, who is unable to maintain herself, to claim maintenance from her husband, who without sufficient reasons, in spite of being capable of maintaining his wife is either refusing or neglecting to do so. Sub-Section 4 of Section125 of the Code of Criminal Procedure provides that no wife shall be entitled to receive an allowance for the maintenance from her husband, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Sub-Section 5 enables the husband to obtain an order canceling the order for payment of maintenance on proof that the wife in whose favour the order has been made is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent. 12. Mr. Deb, learned senior counsel for the Petitioner husband submitted that the cause of action for claiming maintenance arose when the Respondent deserted the husband and started living separately from him. Nevertheless, interestingly the birth of children of the Respondent-wife during the period in which they lived separately implies that they had maintained the conjugal relationship of husband and wife even after desertion. 13. Relying on a decision of the Hon'ble Supreme Court, reported in (1972) 2 SCC 466 (Bhagat Ram v. State of Rajasthan (1972) 2 SCC 466 ), Mr. S. Deb, learned senior counsel for the Petitioner submitted that the Hon'ble Supreme Court has categorically held that the principles of res judicata shall be applicable in criminal cases. Therefore, the case under Section 125 of the Code of Criminal Procedure being a criminal case for all intent purpose, the principles of res judicata would be equally applicable. S. Deb, learned senior counsel for the Petitioner submitted that the Hon'ble Supreme Court has categorically held that the principles of res judicata shall be applicable in criminal cases. Therefore, the case under Section 125 of the Code of Criminal Procedure being a criminal case for all intent purpose, the principles of res judicata would be equally applicable. The relevant observations made by the Hon'ble Supreme Court reads as follows: In the case of Sambasivam v. Public Prosecutor, Federal of Malaya, Lord Mac Dermott observed: The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur' is no less applicable, to criminal than to civil proceedings. Here, the Appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial. The above observations were quoted with approval by this Court in the case of Pritam Singh v. State of Punjab. We are, therefore, of the opinion that the judgment of Jagat Narayan, J. in so far as he has convicted Bhagat Ram for offenses under Sections 120B, 218 and 347 IPC cannot be sustained. 14. Hon'ble Supreme Court in the case of The State of Rajasthan v. Tarachand Jain, reported in (1974) 3 SCC 72 , relying on the decision of Bhagat Ram case (supra) observed that the question as to what is a binding effect of a decision in subsequent proceedings of the same original matter was considered by this Court in the case of Bhagat Ram v. State of Rajasthan and it was held that the principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. In para 14 of Tarachand Jain (supra) the Hon'ble Supreme Court observed as follows: The rule of issue estoppel cannot, in our Judgment, be extended so as to prevent evidence which was given in the previous proceeding and which was held not sufficient to sustain the other for being used in support of a charge of an offence which the State seeks to make out. The rule of issue estoppel prevents re-litigation of the issue which has been determined in a criminal trial between the State: and the accused. If in respect of an offence arising out of a transaction a trial has been taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel. In the, present case, there was no trial and no acquittal. 15. In the case of M. Nagabhushana v. State of Karnataka and Ors., reported in (2011) 3 SCC 408 , the Hon'ble Supreme Court underlining the principles of res judicata and their universal application observed that the principles of res judicata are of universal application as they are based on two age-old principles, namely, interest reipublicae ut sit finis litium, which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa, meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. This doctrine of res judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest. Therefore, any proceeding which has been initiated in breach of the principle of res judicata, is prima facie a proceeding, which has been initiated in abuse of the process of court. 16. Therefore, any proceeding which has been initiated in breach of the principle of res judicata, is prima facie a proceeding, which has been initiated in abuse of the process of court. 16. From the above discussion, it clearly transpires that the effect of a verdict pronounced by a competent court of appropriate jurisdiction on a specific issue arising in the proceeding between the parties, after full dress trial, cannot be pursued in another court of law of equal jurisdiction again on the same issue attended by the same facts. The verdict passed by the earlier court on conclusion of the criminal proceeding would be binding and conclusive in all subsequent proceedings between the parties on the same issue arising out of the same set of facts. The maxim "res judicata pro veritate accipitur", is no less applicable to criminal proceeding than to civil proceeding. If the Petitioner-husband is exonerated from the liability of paying maintenance allowance at the first trial on some issues in a proceeding under Section 125 of Code of Criminal Procedure, when second application is filed by the wife subsequently on the same issue, arising out of the same set of facts, the Petitioner shall not be precluded from taking steps to challenge it at the second trial. 17. Ms. N. Guha, learned Counsel for the Respondent-wife vehemently submitted that there is subtle difference between the prosecution of an accused for a criminal case and the proceeding initiated under Section 125 of the Code of Criminal Procedure Ms. Guha further submitted that since an application under Section 125 of the Code of Criminal Procedure is a piece of social legislation to save the sufferings of a woman deserted by her husband, the principles of res judicata may not have application. Learned Counsel also contended that the constructive res judicata may be applied in a criminal prosecution launched against the accused, for a specific charge and not in case of a proceedings under Section 125 of the Code of Criminal Procedure However, Ms. Guha submitted that the right to claim maintenance by a wife is a right guaranteed under the statute. Therefore, such a right cannot be held up or stalled by applying the principles of res judicata. 18. In support of her contention, Ms. Guha submitted that the right to claim maintenance by a wife is a right guaranteed under the statute. Therefore, such a right cannot be held up or stalled by applying the principles of res judicata. 18. In support of her contention, Ms. Guha, learned Counsel for the Respondent, has relied on a decision reported in (2008) 2 SCC 316 , (Chaturbhuj v. Sita Bai (2008) 2 SCC 316 ), wherein it has been observed by the Hon'ble Supreme Court as follows: 6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125Code of Criminal Procedure is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. ( AIR 1978 SC 1807 ) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. ( 2005 (2) Supreme 503 ). 19. In order to explain the difference between the word 'prosecution' and 'proceeding', Ms. Guha, learned Counsel for the Respondent, has also placed before the Court the dictionary meaning of the 'prosecution' and 'proceeding'. 20. However, Section 2(i) of the Code of Criminal Procedure, 1973 defines 'judicial proceeding', which reads as follows: 2(i) "Judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. 21. Guha, learned Counsel for the Respondent, has also placed before the Court the dictionary meaning of the 'prosecution' and 'proceeding'. 20. However, Section 2(i) of the Code of Criminal Procedure, 1973 defines 'judicial proceeding', which reads as follows: 2(i) "Judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. 21. It is a settled proposition of law that general principles of res judicata are applicable in a criminal proceeding by virtue of the interpretation of the decisions discussed above. However, it requires examination, whether dismissal of a claim for maintenance would act as a bar to the wife from claiming maintenance from her husband for ever. 22. The decision in Chaturbhuj v. Sita Bai (supra) cited by Ms. N. Guha, learned Counsel appearing for the Respondent-wife may not have direct bearing on the question, which has been posed in this revision petition for decision. The constitutional right and a legal right, apart, the principles of res judicata, which has been evolved in the criminal jurisprudence, cannot be given a go bye in the criminal proceedings. Though Ms. Guha has tried to make out a difference between a proceeding under Section 125 of the Code of Criminal Procedure and prosecution of a criminal charge and contended non-application of the provision of principles of res judicata in a proceeding under Section 125 of the Code of Criminal Procedure., but the principles of res judicata, as underlined by the Hon'ble Supreme Court, in various decisions discussed above, would equally apply in a proceeding under Section 125 of the Code of Criminal Procedure. 23. Now question arise, if a wife, who claims maintenance from her husband justifying her separate residence on the ground of cruelty on her, fails to prove the alleged cruelty, a court may dismiss her claim for maintenance. In such a situation, if the wife starts living with her husband and while doing so, if the husband starts treating her with cruelty and/or if the husband gets married with another lady, if such fact can be established by cogent and satisfactory evidence, can the Court refuse to pass order granting maintenance, on the ground that the facts attract the principles of res judicata since it was decided earlier. Obviously, as it appears, in such a situation since a new cause of action has arisen, the wife would be entitled to file second application praying for maintenance allowance. In similar situation, if the application filed by the wife is rejected for her failure to prove that the husband had sufficient means. If subsequently, the husband either gets a good employment and/or is engaged in a lucrative assignment, can the wife be restrained from approaching the court and to prove that the husband has means to pay the maintenance allowance or can the court reject the application filed by the wife by applying the principles of res judicata, if she proves that the husband has sufficient means to pay the maintenance allowance. In such a situation, the wife would be legally entitled to claim maintenance from her husband and any rejection of such claim earlier cannot be a ground for rejection of the subsequent application for maintenance filed by the wife applying the principle of res judicata. Therefore, the principles of res judicata as enunciated by the Hon'ble Supreme Court would apply in a proceeding under Section 125 of the Code of Criminal Procedure, if the second application for claiming maintenance has been filed by the wife on the same set of facts, on same grounds, which were set up and decided in the earlier petition under Section 125 of Code of Criminal Procedure 24. Even if the application for maintenance submitted by the wife is rejected, if a fresh cause of action arises, on fresh set of facts, the wife would be entitled to claim maintenance allowance from her husband if reasons as envisaged under Section 125 of Code of Criminal Procedure are satisfied. In such situation mere rejection of earlier application under Section 125 of Code of Criminal Procedure. would not be a bar to file another application under Section 125 of Code of Criminal Procedure. 25. On careful consideration of the entire facts and circumstances, it appears that the learned Judge, Family Court was aware of the judgment and order passed in Crl. Misc. 91 of 2008 by the same court a few months before. Learned Judge, Family Court, in subsequent Crl. Misc. 25. On careful consideration of the entire facts and circumstances, it appears that the learned Judge, Family Court was aware of the judgment and order passed in Crl. Misc. 91 of 2008 by the same court a few months before. Learned Judge, Family Court, in subsequent Crl. Misc. No. 206 of 2009 under Section 125 of Code of Criminal Procedure instead of discussing the issue to find out whether the earlier petition has been filed, on the same cause of action, in fact, skipped it by holding as follows: ... It is true that the Petitioner filed this petition for maintenance allowance before this Court in the year 2008 and at that time her claim was rejected by the then Judge, Family Court, Shri N.K. Sinha on the ground that the evidence of the Petitioner was inconsistent. This time also the poor Petitioner could not state everything correctly in her petition but from the evidence on record, statement of both the parties it is revealed that Petitioner is the legally married wife of the opposite party and she has been living with the children for last 6 to 7 years.... 26. Since the learned Judge, Family Court in Crl. Misc. No. 206 of 2009 did not consider as to whether the cause of action of the judgment delivered on 25.09.2008 in Crl. Misc. Case No. 91 of 2008 by the then learned Judge, Family Court, Kailashahar, North Tripura, is the same context, between the same parties, in the right perspective, it would be fitness of things to remand the matter to the learned Judge, Family Court to consider as to whether the principles of res judicata would apply in the facts and circumstances of the present case and pass necessary orders in accordance with law. 27. With the above observations and directions, this revision petition is allowed. Both the parties are directed to appear before the learned court below on 01.09.2011. After appearance of the parties, the learned Judge, Family Court, Kailashahar, North Tripura shall proceed to examine the issue in terms of the above observation by giving opportunity to both the parties of being heard. 28. Send a copy of this judgment and order to the court of learned Family Judge, Kailashahar, North Tripura. Petition allowed.