Second Application Seeking Maintenance U/S. 125 CrPC Is Maintainable When Earlier One Was Dismissed On Technical Grounds: Allahabad HC
|The Allahabad High Court observed that a second application filed by a wife under Section 125 of the CrPC is maintainable when the earlier one was dismissed on technical grounds.
The Court rejected the argument advanced by the husband who objected the second application raising the issue of maintainability of a subsequent application under Section 125 of the Cr.P.C. on the ground of ‘Res Judicata.’
However, a Single Bench of Justice Saurabh Lavania observed, “The application under Section 125 Cr.P.C. should be decided summarily as per the procedure prescribed under the Code of Civil Procedure, 1908 (in short "CPC") by the Family Court. Section 10 of the Family Courts Act, 1984 (in short "Act of 1984") provides that provision of CPC shall be applicable to the suits and proceedings other than those under Chapter IX of Cr.P.C. i.e. provisions related to maintenance of wives, children and parents.”
Advocate Anil Kumar Tiwari appeared for the applicant, while AGA Ajay Kumar Srivastava represented the opposite parties.
The wife had moved an application to permit her to withdraw her application under Section 125 of the Cr.P.C. because of a typographical error. However, the Family Court dismissed the said case for want of prosecution and the wife was now granted liberty to file a fresh case under Section 125 of the Cr.P.C.
The wife then preferred a fresh case under Section 125 of the Cr.P.C., to which, an objection was filed by the husband raising the issue of maintainability of the case on the ground of ‘Res Judicata’, arguing that a subsequent application under Section 125 of the Cr.P.C. was not maintainable.
The trial court dismissed the wife’s application as withdrawn based on the husband’s argument without liberty to file a fresh case.
The High Court reiterated the ‘aims and objects’ of Section 125 Cr.P.C. as outlined by the Apex Court in Anju Garg v. Deepak Kumar Garg wherein it was held that proceedings under Section 125 must be remembered as “summary nature” and “are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.”
Regarding the issue of ‘Res Judicata’ under Section 11 of the CPC, the Court reiterated the Supreme Court’s decision in Prem Kishore v. Brahm Prakash, wherein it was held, “Where the former suit is dismissed by the trial court…on the ground of a technical mistake…and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit.”
Consequently, the Court held, “Upon due consideration of the aforesaid, this Court is of the firm view that second application filed by the opposite party under Section 125 Cr.P.C., though the earlier was dismissed without providing liberty to file fresh, would be maintainable and the order dated 31.08.2024 is not liable to be interfered with by this Court.”
Accordingly, the High Court dismissed the petition.
Cause Title: Shankh Saxena v. State Of U.P. & Anr. (Neutral Citation: 2024:AHC-LKO:64254)
Appearance:
Applicant: Advocates Anil Kumar Tiwari, Rahul Mishra, Rajat Bansal and Rushida Farheen
Opposite Party: AGA Ajay Kumar Srivastava