1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH : NAGPUR Criminal Writ Petition No. 496 of 2010 [Shyamrao Bhaiyya Dharme Vs. Sau. Sangita S. Dharme] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. S. Patrikar, Adv., for the petitioner. Mr. V.G. Bhamburkar, Adv., for respondent sole. ---- CORAM : A.H. JOSHI, J. DATE : 18th March, 2011. 1. Heard Adv. Mr. S. Patrikar for the applicant-petitioner and learned learned Adv. Mr. V.G. Bhamburkar, Adv., for respondent. 2. This is a petition by husband. He has objected to maintainability of proceedings under Section 125 of Criminal Procedure Code filed by the respondent-wife in the Court of Judicial Magistrate First Class, Akola. 3. Ground of objection, as argued and as spelt out in the body of petition, is as follows:- “A petition under Section 125 of Criminal Procedure Code filed by the wife in the Court of Judicial Magistrate First Class, Baitul, was dismissed for default. The said dismissal would result in res judicata, and will dis-entitle her 2 from filing a fresh application under Section 125 of Criminal Procedure Code.” 4. Petitioner’s objection was overruled and the said order is maintained in the Revision Application filed before Sessions Court. 5. In support of petition, petitioner has placed reliance on following reported judgments:- [a] Vithalrao Marotrao Awadhut Vs. Ratnaprabha Awadhut & others [1978 Mh. L.J. 393], and [b] Baburao Akaram Kalaskar Vs. Kusum Baburao Kalaskar [1980 Mh. L.J. 871], and 6. In case of Vithalrao Marotrao Awadhut [cited supra], the wife, instead of moving for recovery of arrears of and for enhancement of maintenance, had preferred a fresh application for maintenance at Nagpur, in the background that though the monthly maintenance of Rs.40/- for the wife and Rs.10/- for the child was granted by the Judicial Magistrate First Class, Wardha. In the case at hand, the facts are totally different. The petitioner’s application was dismissed by the Court at Betul [Madhya Pradesh] for want of prosecution and there is no similarity. The Judgment in case of Vithalrao Awadhut [cited supra] does not govern this case. 7. In so far as case of Baburao Akaram 3 Kalaskar Vs. Kusum Baburao Kalaskar [cited supra] is concerned, in this case, the petitioner’s claim for maintenance under Section 125 of Criminal Procedure Code was held not maintainable on same grounds, in the background that as on fact-finding, it was held against the wife in civil proceedings initiated by her for judicial separation, alleging cruelty and re- marriage by husband. The said finding could not have been re-opened in the proceeding under Section 125 of Criminal Procedure Code, on the ground of res judicata. It is a settled principle that different conclusion between the same parties on same issues could never have been arrived in criminal proceedings. In the present case, however, the circumstances are not comparable, or which could be governed with the precedent relied upon. 8. The objections raised by the learned Adv., for the petitioner as to maintainability of the second petition under Section 125 of Criminal Procedure Code are, thus, based on technicality. A wife, who is unable to maintain herself, continues, and if so continues, her right to claim maintenance would not be taken away in absence of adjudication of her right by a competent Court. 9. The respondent-wife’s application in the Court of Judicial Magistrate was, therefore, maintainable. 4 10. In the result, present petition has no merit, and is dismissed. Judge |Hedau|