High CourtsSingle Bench(2026) 07 MP CK 0825

Chanclesh Singare vs Smt. Rashmi Singare

Madhya Pradesh High Court, Jabalpur Bench · Decided on 17 July 2026

HON’BLE JUDGES
Dwarka Dhish Bansal, J
CASE NUMBER
CRIMINAL REVISION No. 6100 of 2019

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Judgment

72 paragraphs · 7,076 words

This criminal revision has been preferred by the petitioner/husband challenging the order dated 23.10.2019 passed by Principal Judge, Family Court, Mandla, in MJCR No.83/2017, whereby the Family Court has awarded an amount of Rs.7,000/- to the respondent/wife, towards monthly maintenance, from the date of order.

2.

Learned counsel for the petitioner/husband submits that previously also an application under Section 125 Cr.P.C was filed by the respondent/wife and after hearing both the parties was dismissed on merits by final order dated 27.08.2015 passed in MJC No.699/2014, therefore, instant second application dated 28.03.2017 could not have been allowed being barred by res judicata. He submits that without taking into consideration this aspect of the matter, the Family Court has committed an illegality in passing the impugned order and in allowing the second application under Section 125 of Cr.P.C. filed by the respondent/wife by awarding the monthly maintenance amount of Rs.7,000/-. In support of his argument, learned counsel for the petitioner placed reliance on the decision of Delhi High Court in the case of Sunita & another v. Vijay Pal @ Mohd. Sabir & another, given in Crl.Rev.P 161/2018 on 18.08.2022.

(ii)

He also submits that in the meantime, an ex parte decree of restitution of conjugal rights was also passed on 05.12.2014 in HMA case No.382/2014, on the application filed by petitioner/husband under Section 9 of the Hindu Marriage Act, 1955 but the respondent/wife did not come forward to comply with the decree, therefore, it is clear that she is residing separately without there being any sufficient cause and this was sufficient to dismiss the second application also, filed under Section 125 of Cr.P.C.

(iii)

He also submits that thereafter, a bi-parte judgment and decree of divorce was also passed in favour of the petitioner/husband on 08.03.2017 in HMA Case No.3000248/2015 instituted by the petitioner/husband on 03.12.2015 and in presence of the decree of divorce dtd.08.03.2017, the respondent was not entitled to any maintenance on the second application filed on 28.03.2017. With these submissions, he prays for setting aside the impugned order and for allowing the criminal revision.

3.

Learned counsel appearing for the respondent/wife supports the impugned order and prays for dismissal of the criminal revision.

4.

Heard learned counsel for the parties and perused the record.

5.

Undisputed facts of the case are that marriage of the petitioner was solemnized with the respondent on 01.05.2014 and first application dtd.01.11.2014 filed by the respondent/wife under Section 125 of Cr.P.C., was dismissed by the Family Court by holding that it is the respondent/wife who is residing separately without there being any sufficient cause. It is apparent that prior to filing first application under Section 125 of Cr.P.C. on 01.11.2014, the petitioner/husband filed an application under Section 9 of the Hindu Marriage Act, 1955 on 25.09.2014, which was allowed vide ex parte judgment and decree dated 05.12.2014. Thereafter, the petitioner/husband filed a petition under Section 13 of the Hindu Marriage Act on 03.12.2015, which was also allowed by passing decree of divorce on 08.03.2017 in favour of the petitioner/husband. Second application under Section 125 of Cr.P.C. was filed by the respondent/wife after the decree of divorce i.e. on 28.03.2017, which has been allowed by the impugned order dated 23.10.2019 by awarding monthly maintenance of Rs.7,000/- to the respondent/wife.

6.

In view of the aforesaid factual scenario, two questions arise for consideration in the present case, which are as follows:

(i)

Whether a second application under Section 125 of the Code of Criminal Procedure is maintainable when the earlier application was dismissed on merits, and whether the findings recorded in the earlier proceedings or the order dismissing the first application would operate as res judicata?

(ii)

Whether, after the dissolution of marriage by a decree of divorce, the wife is still required to establish that she is living separately for sufficient cause in order to claim maintenance under Section 125 CrPC?

7.

As the question regarding the maintainability of a second application under Section 125 CrPC and the applicability of the principle of res judicata thereto frequently arises in the maintenance proceedings, therefore, the existing legal position is required to be considered and quoted in detail.

8.

The Hon’ble Supreme Court in the case of Rohtash Singh vs. Ramendri (Smt) and others, (2000) 3 SCC 180, has held as under:

“4.

The principal contention raised by the learned counsel for the petitioner is that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the respondent, an order for maintenance could not have been passed in favour of the respondent on account of sub-section (4) of Section 125 CrPC.

5.

Sub-section (4) of Section 125 CrPC provides as under:

“125.

(4) No wife shall be entitled to receive an allowance 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.”

6.

Under this provision, a wife is not entitled to any maintenance allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of Section 125 CrPC presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim maintenance allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim maintenance allowance under Section 125 of the Code of Criminal Procedure.

7.

The second ground on which she would not be entitled to maintenance allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of individual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim maintenance allowance under Section 125 CrPC and how far can the plea of desertion be treated to be an effective plea in support of the husband's refusal to pay her the maintenance allowance.

8.

Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15-7-1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be a “wife” within the meaning of Section 125 CrPC on account of Explanation (b) to sub-section (1) which provides as under:

“Explanation.—For the purposes of this chapter—

(a)***

(b)

‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

9.

On account of the explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. This Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal [(1978) 4 SCC 70 : 1978 SCC (Cri) 508 : AIR 1978 SC 1807] observed as under: (SCC p. 74, para 9)

“9.

This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause — the cause of the derelicts.”

10.

Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi [1983 Cri LJ 36 (Cal)] .) The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.

11.

Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her.

12.

Learned counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under Section 125 CrPC was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by the respondent, she would not be entitled to maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, the learned counsel appears to be correct. But for that short period, we would not be inclined to interfere.”

9.

In the case of Rina Kumari alias Rina Devi alias Reena v. Dinesh Kumar Mahto alias Dinesh Kumar Mahato and Another, (2025) 3 SCC 33, Hon’ble Supreme Court has held as under:

“30.

Thus, the preponderance of judicial thought weighs in favour of upholding the wife's right to maintenance under Section 125CrPC and the mere passing of a decree for restitution of conjugal rights at the husband's behest and non-compliance therewith by the wife would not, by itself, be sufficient to attract the disqualification under Section 125(4)CrPC. It would depend on the facts of the individual case and it would have to be decided, on the strength of the material and evidence available, whether the wife still had valid and sufficient reason to refuse to live with her husband, despite such a decree. There can be no hard-and-fast rule in this regard and it must invariably depend on the distinctive facts and circumstances obtaining in each particular case. In any event, a decree for restitution of conjugal rights secured by a husband coupled with non-compliance therewith by the wife would not be determinative straightaway either of her right to maintenance or the applicability of the disqualification under Section 125(4)CrPC.

31.

Another contention that was urged before us is that the findings in the judgment for restitution of conjugal rights by the Family Court, being a civil court, would be binding on the court seized of the petition under Section 125CrPC, as they are to be treated as criminal proceedings. This specious argument needs mention only to be rejected outright. No doubt, in Shanti Kumar Panda v. Shakuntala Devi [Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 : 2004 SCC (Cri) 320] , this Court held that a decision by a criminal court would not bind the civil court while a decision by the civil court would bind the criminal court. However, maintenance proceedings are essentially civil in nature and the reason for inclusion of the provisions dealing therewith in the Code of Criminal Procedure was clarified by the Law Commission of India in September 1969.

32.

Significantly, as long back as in the year 1963, in Jagir Kaur v. Jaswant Singh [Jagir Kaur v. Jaswant Singh, 1963 SCC OnLine SC 137 : AIR 1963 SC 1521], a three-Judge Bench of this Court held that proceedings under Section 488 of the Code of Criminal Procedure, 1898, the precursor to Section 125CrPC, are in the nature of civil proceedings; the remedy, being a summary one; and the person seeking that remedy, ordinarily being a helpless person. Therefore, even if non-compliance with an order for payment of maintenance entails penal consequences, as may other decrees of a civil court, such proceedings would not qualify as or become criminal proceedings. Nomenclature of maintenance proceedings initiated under the Code of Criminal Procedure, as those provisions find place therein, cannot be held to be conclusive as to the nature of such proceedings.

33.

Further, in Iqbal Singh Marwah v. Meenakshi Marwah [Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 : 2005 SCC (Cri) 1101] , while dealing with the contention that an effort should be made to avoid conflict of findings between civil and criminal courts, a Constitution Bench pointed out that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.

34.

The Evidence Act, 1872, distinguishes between judgments in rem and judgments in personam and Sections 40 to 43 therein stipulate the relevance of existing judgments, orders or decrees in subsequent proceedings in different situations. The relevant provisions are extracted hereunder for ready reference:

“40.

Previous judgments relevant to bar a second suit or trial.—The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.

41.

Relevancy of certain judgments in probate, etc. jurisdiction.—A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof— that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, [order or decree] declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, [order or decree] declares that it had been or should be his property.

42.

Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41.—Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

Illustration

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

43.

Judgments, etc. other than those mentioned in Sections 40 to 42, when relevant.—Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.

Illustrations

(a)

A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

(b)

A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife. The judgment against B is irrelevant as against C.

(c)

A prosecutes B for stealing a cow from him, B, is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d)

A had obtained a decree for the possession of land against B, C, B's son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime.

[(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f)

A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.”

35.

Sections 34 to 37 of the Sakshya Adhiniyam, 2023, correspond to Sections 40 to 43 of the Evidence Act, 1872, with some modifications. Section 41, as is clear from the extraction hereinabove, specifically deals with instances where an earlier judgment, order or decree constitutes conclusive proof whereas Section 42 provides that an earlier judgment is relevant if it relates to matters of public nature relevant to the inquiry, but such judgments, orders or decrees are not conclusive proof of that which they state. These provisions were considered in detail by a three-Judge Bench of this Court in K.G. Premshankar v. Inspector of Police [K.G. Premshankar v. Inspector of Police, (2002) 8 SCC 87 : 2003 SCC (Cri) 223] , in the context of when a judgment in a civil proceeding, on the same cause of action, would be relevant in a criminal case, and it was observed thus : (SCC p. 97, paras 30-31)

“30.

What emerges from the aforesaid discussion is — (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act;… if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.

31.

Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. … Hence, in each and every case, the first question which would require consideration is — whether judgment, order or decree is relevant, if relevant — its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case.”

36.

Decisions of this Court manifest that judgments passed on merits in civil proceedings have been accepted as sufficient cause to discharge or acquit a person facing prosecution on the same grounds. This dictum is applied especially in cases where civil adjudication proceedings, like in tax cases, lead to initiation of prosecution by the authorities. Such cases are, however, different as there is a direct connect between the civil proceedings and the prosecution which is launched. The facts and allegations leading to the prosecution directly arise as a result of the civil proceedings. Moreover, the standard of proof in civil proceedings is a preponderance of probabilities whereas, in criminal prosecution, conviction requires proof beyond reasonable doubt. We do not think the said principle can be applied per se to proceedings for maintenance under Section 125CrPC by relying upon a judgment passed by a civil court on an application for restitution of conjugal rights. Further, the two proceedings are altogether independent and are not directly or even indirectly connected, in the sense that proceedings under Section 125CrPC do not arise from proceedings for restitution of conjugal rights.

37.

Long ago, in Ramesh Chander Kaushal v. Veena Kaushal [Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 : 1978 SCC (Cri) 508] , this Court noted that it is valid to assert that a final determination of a civil right by a civil court would prevail against a like decision by a criminal court but held that this principle would be inapplicable when it comes to maintenance granted under Section 24 of the Hindu Marriage Act, 1955, as opposed to maintenance granted under Section 125CrPC. It was noted that the latter provision was a measure of social justice specially enacted to protect women and children falling within the constitutional sweep of Article 15(3) reinforced by Article 39.

38.

Viewed thus, the findings in the proceedings for restitution of conjugal rights, which were partly uncontested as Reena did not appear before the Family Court to adduce evidence or advance her case after filing her written statement, did not clinch the issue and the High Court ought not to have given such undue weightage to the said judgment and the findings therein. In the process, certain crucial factors were overlooked. Particularly, the fact that the witnesses who appeared on behalf of Reena in Section 125CrPC proceedings were not even cross-examined. It was clear therefrom that Dinesh did not even contest or rebut what they had stated. The fact that Reena was fully dependent on her brother was thus admitted. Further, documents were placed on record in proof of Reena's abortion in January 2015. In that regard, Dinesh's admission that he did not bear the expenditure for her treatment and her unrebutted assertion that he did not take her to the hospital or even come from Ranchi to see her were clear indicia of the pain and mental cruelty meted out to her. The fact that she was not allowed to use the toilet in the house or avail proper facilities to cook food in the matrimonial home, facts which were accepted in the restitution proceedings, are further indications of her ill-treatment. ..... ..... ...... ......

41.

The reason for this is not far to gather. In Rohtash Singh v. Ramendri [Rohtash Singh v. Ramendri, (2000) 3 SCC 180 : 2000 SCC (Cri) 597] , this Court clarified that a wife, who suffered a decree of divorce on the ground of deserting her husband, would not be entitled to maintenance under Section 125CrPC as long as the marriage subsisted, but she would be entitled to such maintenance once she attained the status of a divorced wife, in the light of the definition of a “wife” in Explanation (b) to Section 125(1)CrPC. Dinesh, therefore, sought to protect himself from a claim by Reena for maintenance by projecting the disobeyed restitution decree as a defence and as long as she did not attain the status of a divorced wife, that protection would endure to his benefit. This stalemate of sorts created by Dinesh clearly reflects his lack of bona fides and demonstrates his attempt to disown all responsibility towards his wife, Reena. These factors, taken cumulatively, clearly manifest that Reena had more than sufficient reason to stay away from the society of her husband, Dinesh, and her refusal to live with him, notwithstanding the passing of a decree for restitution of conjugal rights, therefore, cannot be held against her. In consequence, the disqualification under Section 125(4)CrPC was not attracted and the High Court erred grievously in applying the same and holding that Reena was not entitled to the maintenance granted to her by the Family Court.”

10.

From the aforesaid decisions in the case of Rohtash Singh (Supra) and Rina Kumari (Supra), it is evident that mere passing of a decree for restitution of conjugal rights in favour of the husband does not, by itself, disentitle the wife from claiming maintenance under Section 125 of the CrPC. Equally, the findings recorded while granting such a decree do not operate as an absolute bar to the grant of maintenance under Section 125 CrPC.

11.

It is further well settled that once a decree of divorce is passed, the woman becomes entitled to claim maintenance in the capacity of a "divorced wife" as contemplated under the Explanation (b) to sub-section (1) of Section 125 CrPC. After the dissolution of marriage, the disqualifications enumerated under Section 125(4) CrPC cease to apply. Consequently, a divorced wife is not required to establish that she is living separately with sufficient cause, nor can maintenance be denied on the ground that she had withdrawn herself from the society of her husband without sufficient reason. The only relevant considerations are whether she is unable to maintain herself and whether the former husband, having sufficient means, has neglected or refused to maintain her. Therefore, where during the pendency of proceedings under Section 125 CrPC a decree of divorce is passed, the wife may be denied maintenance for the period prior to the decree if the Court records a finding that she was residing separately without sufficient cause. However, such finding cannot disentitle her from claiming maintenance for the period subsequent to the decree of divorce. From the date of dissolution of marriage, she acquires the statutory status of a divorced wife for the limited purpose of claiming maintenance under Section 125 CrPC, and her claim thereafter is required to be adjudicated in accordance with the principles governing the entitlement of a divorced wife.

12.

This Court has also examined various judicial decisions which show that the principle of res judicata does not bar a second application under Section 125 CrPC merely because an earlier application was dismissed on merits. A second application is maintainable on the basis of subsequent events and when there is change in circumstances or there is a fresh cause of action.

(i)

In the case of Durga Prasad v. Bala Bai, 1994 (I) MPWN 80, the court held that once an application under S.125 CrPC is rejected on the ground that wife is able to maintain herself then second application is maintainable as with the lapse of 8 years, the circumstances have changed and there is no bar under the Code of Criminal Procedure for entertaining a second petition under section 125 Cr.P.C. being filed in the changed circumstances. In the facts and circumstances, the principles of res judicata are neither attracted nor can be applied and the learned trial Court has rightly entertained the application.

(ii)

In the case of Leeladhar v. Laxmibai, 1999 (II) MPWN 28, the court held that as the maintenance application filed by the non-applicant wife u/s 125 of the Code and 24 of the Hindu Marriage Act, 1955 were dismissed on the ground that the applicant had offered her to maintain on condition of her living with him and she had refused to live with him without just ground. Now after decree of divorce husband had no right to offer her to maintain on condition of her living with him. The application dismissed before decree of divorce has no effect of res judicata as the ground available to the applicant before decree of divorce for refusal of maintenance allowance, was not available to him after the decree of divorce.

According to section 125(1) of the Code explanation B, "wife" includes woman who has been divorced by or has obtained divorce from her husband and has not re-married. If a wife (not divorced) claim maintenance on the ground that she was unable to maintain herself and her husband had sufficient means and was neglecting or refusing to maintain her, she will be entitled to maintenance. But according to second proviso of section 125(3) if the husband offered to maintain her on condition of her living with him and she refused to live with him without any just ground, she would not be entitled to maintenance. But after the decree of divorce, the husband cannot offer to maintain on condition of her living with him. After divorce, the wife unable to maintain herself becomes entitled to maintenance from her ex-husband if he was having sufficient means and had neglected or refused to maintain her. Her application can be rejected only if she had remarried or was living in adultery. It is settled that under section 125(1) (a) a husband having sufficient means is under an obligation to maintain his divorced wife who had not remarried or is not living in adultery. The ground on which the decree for divorce was obtained was immaterial in application filed u/s 125 of the Code after decree of divorce. As stated earlier, in this case, the applicant obtained the decree of divorce on the ground that the non-applicant wife had deserted him. The finding of desertion by the wife in granting a decree of divorce is of no consequence in proceedings u/s 125 of the Code filed after the decree of divorce. After the decree of divorce, the question of living of wife with her husband, does not arise at all. The Apex Court in case of Bai Tahira v. Ali Hussain Fissalli Chothia and another, AIR 1979 SC 362, held that every divorced wife, otherwise eligible is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to her right under the Code.

(iii)

In the case of Sunanda Chandrakant Karanjkar v. Chandrakant Bhaskar Karanjakar and another, 1989 CrLJ 398, a Coordinate Bench of Bombay High Court held that when earlier application under S.125 CrPC was dismissed on the ground that wife is living separately without sufficient cause, second application will not be barred by principle of res judicata as subsequent change in circumstances like husband filing application for divorce and securing a divorce decree in his favour leads to change in circumstances where second application is maintainable.

(iv)

In the case of Puliyulla Chalil Narayana Kurup v. Thayyulla Parambath Valsala, 2005 SCC OnLine Ker 62, a Coordinate Bench of Kerala High Court held that the dismissal of an earlier application under Section 125 CrPC does not permanently bar a subsequent claim for maintenance. A second application is maintainable where it is founded on subsequent events or a change in circumstances, such as the wife acquiring the status of a divorced wife or the husband contracting another relationship, thereby providing a fresh cause of action. Consequently, the principle of res judicata, even if applicable to proceedings under Section 125 CrPC, would not preclude a subsequent application based on such changed circumstances.

(v)

In the case of Sipra Dey v. Pradip Dey & Anr, 2016 Supreme(Cal) 699, a Coordinate Bench of Calcutta High Court held that the principle of res judicata is not applicable in a case under Section 125 of the Code of Criminal Procedure and there is no bar to filing a second application. It was further observed that the petitioner cannot be denied access to the Court simply on the ground that her earlier prayer was turned down. The Court also observed that proceedings under Chapter IX of the Code of Criminal Procedure are neither a complaint nor do they entail any offence and, therefore, the concept of double jeopardy cannot be invoked for redressing her wrong.

(vi)

In the case of Shyam Bahadur Singh v. State of U.P. and Another, 2023 LiveLaw(AB) 199, a Coordinate Bench of Allahabad High Court held that this is not disputed that the earlier proceeding initiated by the wife under Section 125 Cr.P.C. came to be dismissed and the revision filed by her also came to be dismissed. This is not disputed that subsequent case under Section 125 Cr.P.C. was filed by the wife on a premise that there has been a change in circumstances. It may be noted that the solemn aim of the proceedings under Section 125 Cr.P.C. is to prevent vagrancy and destitution. Section 125 Cr.P.C. is a piece of social legislation introduced in Cr.P.C. to grant a quick relief to the members of the society. At the same time, it may be noted that procedure which shall be adopted in such cases is a summary one. This is settled legal position that any matter which has been decided in a summary manner shall not have an effect of res-judicata, hence in my view this argument is misconceived. More so because this application has been moved on the ground that there has been change in circumstances i.e. remarriage by the husband. Though the petitioner has objected to the fact of remarriage, however, this court in exercise of writ jurisdiction is not permitted to go into the disputed questions of fact. There may be instances where the person who falls within the purview of section 125 Cr.P.C. as being one who has been neglected or refused maintenance during certain period of time. There may be some instances where a person, is for the time being able to maintain himself or herself looses her/his resources because of changed circumstances. In such cases a fresh right to claim maintenance may accrue. Legally the liability to maintain under section 125 Cr.P.C. is continuing one. In my view, when there is a change in circumstances entitling a person to be a claimant as per provisions of section-125 Cr.P.C., he or she can very well apply for maintenance. If such an option is foreclosed, it shall frustrate the very purpose of section-125 Cr.P.C.

(vii)

In the case of Kamal Singh v. Savitri Bai, 2017 CrLJ 1508, a Coordinate Bench of this court while relying on earlier decision of this court in the case of Kamlesh Kumar Patel v. Smt. Madhularta (Misc. Cri. Case No.2439/2011, decided on 26.3.2013) held that it is also settled position of law that the principle of res judicata is not applicable to the criminal proceeding including the proceeding under Section 125 of the Cr.P.C. It is needless to state here that the provision of Section 125 of Cr.P.C has been enacted by the Legislature for the welfare of weaker section of the society like women, children and parents, who are unable to maintain themselves and if their applications are thrown away without making any enquiry on merits of the same, then till the extent of such parties, the process of justice would be failed. So in such circumstances, without recording the evidence and examining the case on merits, I do not find fit to quash the application of the respondent filed under Section 125 of Cr.P.C. by invoking the power of this court enumerated under Section 125 of the Cr.P.C.

(viii)

In the case of Sunita & Anr. v. Vijay Pal @ Mohd. Sabir & Anr., 2022 Supreme(Del) 1186, a Coordinate Bench of Delhi High court held that once an application under 125 CrPC is decided on merits in favour of petitioner/wife then, subsequent application for maintenance under 125 CrPC is barred by Principle of res judicata in presence of alternative remedy under Section 127 CrPC. Similar view was expressed by this court in the case of Jagannath soni v. Smt. Munnibai @ Aruna Kumari Soni, vide order dtd. 13.07.2026 in CRR 1965 of 2018 (at Jabalpur).

13.

With regard to first question, from the aforesaid judicial precedents, it is evident that the principle of res judicata does not apply to the proceedings under Section 125 CrPC. In the case of Mohd. Abdul Samad v. The State of Telangana & Anr., (2025) 2 SCC 49, the Hon’ble Supreme Court again reiterated that procedure under S. 125 CrPC is summary one. It is well settled that principle of res judicata is not applicable to summary proceedings. A subsequent application under Section 125 CrPC is maintainable where it is founded on a change in circumstances or a fresh cause of action. Therefore, an application cannot be rejected at the threshold merely because an earlier application was dismissed for default, dismissed on merits, or rejected on the ground that the wife was living separately without sufficient cause. In every such case, the Court is required to afford the parties an opportunity of hearing, permit them to adduce evidence regarding the subsequent change in circumstances, and determine the maintainability and entitlement to maintenance on the basis of the evidence so recorded. Such determination cannot be made without recording evidence.

14.

The second question that arises for consideration is whether the findings recorded in a judgment & decree of divorce are binding upon the Court while deciding an application under Section 125 CrPC. In the considered opinion of this Court, the answer is in the negative. Once the marriage stands dissolved by a decree of divorce, the findings recorded therein regarding the wife living separately without sufficient cause cease to have any relevance for deciding her claim for maintenance as a divorced wife. After divorce, the disqualification contained in Section 125(4) CrPC no longer survives, and the claimant is not required to establish that she was living separately with sufficient cause. She claims maintenance in the capacity of a divorced wife and not merely as a wife. Consequently, the findings recorded in the decree of divorce, by themselves, do not preclude or govern the determination of a subsequent application for maintenance filed after dissolution of the marriage.

15.

So far as the binding effect of the decision relied upon by learned counsel for the petitioner in the case of Sunita (supra) is concerned, the same does not provide any help to the petitioner/husband because in this case first application under Section 125 of Cr.P.C. was allowed, therefore, the Court held that since there is an alternative statutory remedy available under Section 127 of Cr.P.C., therefore, fresh application under Section 125 of Cr.P.C. for awarding maintenance is not maintainable.

16.

In the present case that is not the situation but is, that the first application under Section 125 of Cr.P.C. was dismissed on 27.08.2015 and thereafter in the light of subsequent events i.e. in the light of decree of restitution of conjugal rights passed on 05.12.2014 and further in view of filing of the petition under Section 13 of the Hindu Marriage Act and in view of passing of decree of divorce on 08.03.2017 on the ground of cruelty, the Family Court has passed the impugned order on 23.10.2019 by allowing the second application under Section 125 of Cr.P.C. So, in the present case, there being change in the circumstances, the second application for maintenance was maintainable.

17.

At the same time, it is hereby observed that the proceedings under Section 125 of Cr.P.C. are of summary nature, hence in these proceedings, the principle of res judicata is not applicable especially, in the changed circumstances.

18.

In view of the aforesaid discussion and in view of the aforesaid law laid down by the Hon’ble Supreme Court, coordinate Benches of this Court as well as by several other High Courts, this Court does not find any illegality in the impugned order allowing the second application under Section 125 of Cr.P.C.

19.

Resultantly, instant criminal revision fails and is hereby dismissed.

20.

Pending application(s), if any, shall stand disposed of.