Decided on January 23,2003

SARASWATHY Respondents


- (1.) This revision is directed against the Order dated 5th August, 1999 of the Judge, Family Court, Kozhikode in C.C. 373/1998. The respondent herein filed a petition for maintenance against the petitioner under Sec. 125 of the Cr.P.C. before the Family Court, Kozhikode. Though the petition was stoutly opposed by the petitioner, the lower court by the impugned order allowed the petition directing the petitioner to pay maintenance to the respondent at the rate of Rs. 350 per month. The said order is seriously challenged in this revision.
(2.) The petitioner married the respondent on 22nd April, 1987 and a child was born in the wedlock. Their marriage was dissolved by a decree passed by the lower court on 18th October, 1997 in O.P. 219/1993. An earlier application for maintenance filed by the respondent was dismissed on the ground that she was living in adultery. After the dissolution of the marriage the respondent filed the application for maintenance alleging that the petitioner is bound to maintain her as she is unable to maintain herself. The petitioner resisted the application contending that since an earlier application filed by the respondent was dismissed, the second application is not maintainable. It was also contended by the petitioner that since the respondent is living in adultery, she is disentitled to get maintenance in view of the provisions contained in Sec. 125(4) of the Cr.P.C. The court below rejected both the contentions and allowed the application.
(3.) The first question arising for consideration in this case is whether the dismissal of the earlier application for maintenance filed by the wife under Sec. 125 oJ the Cr.P.C. is a bar to the consideration of the second application filed by her after she suffered a decree for divorce. It is settled position that when an application for maintenance filed by the wife is dismissed on merits, a second application for maintenance on the same facts cannot be entertained. In this case, admittedly, the respondent had filed M.C. 223/1993 against the petitioner for maintenance and the same was dismissed by the lower court on the ground that she was leading an adulterous life. After the dismissal of the first application, the respondent suffered a decree for divorce. The second application for maintenance was filed by her as a divorced wife. As has been held by the Supreme Court in Rohtash Singh v. Smt. Ramendri and others (JT 2000 (2) SC 553) 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 entitled to claim maintenance from the person of whom she was once the wife. In this case the earlier application was on one state of facts and the second application was based on a different state of facts. The respondent filed the first application as the wife of the petitioner but the second application was filed by her as his divorced wife. Therefore the lower court was fully justified finding that the second application is maintainable.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.