Second Application U/S 125 CrPC Is Maintainable Even If First Plea Was Dismissed Sans Liberty To File Afresh: Allahabad HC

A bench of Justice Saurabh Lavani also added that a man's refusal to support his wife and children, whom he is bound to support under the law, would be covered under the maxim "de die in diem," which means "doing something every day” as it is his 'continuing duty'.

The bench also referred to the High Court's May 2023 Judgment wherein it was observed that a second application seeking maintenance under Section 125 of CrPC can sustain, after the rejection of the first application, if there are changes in the circumstances, entitling a person to be a claimant under the said provision.

The single judge made these observations while rejecting a Section 482 CrPC plea moved by the husband challenging an order of the family court to entertain a Section 125 CrPC plea moved by his wife.

The applicant argued that his wife had earlier moved a plea under Section 125 CrPC, which was dismissed for want of prosecution, and no liberty was granted to her to file a fresh case under Section 125 CrPC.

Hence, the applicant's case was that his wife's subsequent petition is neither entertainable nor maintainable, and being so, without adjudicating it on merits, it is liable to be dismissed.

The Family Court earlier rejected the objection of the applicant/husband in the order impugned (dated August 31, 2024) and entertained the application, fixing (September 19, 2024) as the date for filing the objection.

Challenging the said order, the applicant-husband moved the HC by relying on Apex Court's judgment in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior, and others; AIR 1987 SC 88

At the outset, the single Judge referred to the Top Court's recent ruling in Prem Kishore & Ors. v. Brahm Prakash & Ors. 2023 LiveLaw (SC) 266, wherein it was held that where a former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, etc., the decision, not being on the merits, would not be res judicata in a subsequent suit.

Further, the Court elaborated on the use of the expression "from time to time" in Section 125 CrPC by taking clues from the Apex Court's judgment in the case of Samruddhi Co-operative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd. 2022 LiveLaw (SC) 36 wherein it was observed that refusal by a man to maintain his wife and children whom he is bound to maintain under the law is a wrong which is a continuing one (reference was made to Supreme Court's 1981 Judgment in Commissioner Of Wealth Tax, Amritsar vs Suresh Seth)

Against this backdrop, noting the true meaning of the expression "from time to time" used in Section 125 Cr.P.C. and the principles related to "Res Judicata", "continuing wrong" and "recurring wrong or successive wrong" and also the "aims and objects" related to preferring an application under Section 125 CrPC, the Court concluded that a second plea under Section 125 CrPC would be maintainable.

Appearances

Counsel for Applicant: Ajay Kumar Srivastava, Anil Kumar Tiwari, Rahul Mishra, Rajat Bansal, Rushida Farheen

Counsel for Opposite Party: G.A.

Case title - Shankh Saxena Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another

Case citation:

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