H.R.PANWAR,J. - (1.) THIS criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, 'the Code' hereinafter) is directed against the order dated 22.5.2002 passed by the Judge, Family Court, Udaipur (for short, "the trial Court" hereinafter) in Criminal Regular Case No. 448/2001, whereby the trial Court, on an application filed by the non- petitioner under Section 125 of the Code, granted monthly allowance of maintenance @ 1,000/- per month in favour of the non-petitioner and against the petitioner. Being aggrieved of the order impugned granting monthly allowance of maintenance, the petitioner has filed the instant criminal revision petition.
(2.) I have heard learned counsel for the parties. Carefully gone through the order impugned, as also the record of the trial Court. It is contended by the learned counsel for the petitioner that though the marriage of the petitioner and non-petitioner was solemnized on 01.06.1979 according to Hindu rites but since 1988, the non-petitioner has been residing separately and it is the non-petitioner who deserted the petitioner and, therefore, she is not entitled for any maintenance. Learned counsel for the petitioner further submits that the non-petitioner earlier filed an application under Section 125 of the Code seeking monthly allowance of maintenance before the Judicial Magistrate, Doongarpur being Criminal Case No. 114/1985 and during pendency of that matter, the parties entered into a compromise vide Ex.NA-1 on 25.05.1988 and as per the compromise, the petitioner has paid a sum of Rs. 28,000/- to the non-petitioner and the trial Court disposed of the matter keeping in view the compromise filed by the parties vide Ex.NA-2. Learned counsel further submits that the non-petitioner filed an application under Section 9 of the Hindu Marriage Act, 1955, which came to be dismissed by the Family Court, Udaipur, vide order dated 11.08.2003 and the appeal against that order, being D.B. Criminal Misc. Appeal No. 302/2004 was dismissed by this Court vide order dated 02.01.2006. Learned counsel for the petitioner further submits that by entering into the compromise, the issue between the parties had been decided in the earlier application under Section 125 of the Code and, therefore, the principle of res judicata applies and the non-petitioner is estopped from claiming the allowance of maintenance. It is also contended by the learned counsel for the petitioner that the non-petitioner herself is an earning member as she is working in "Aanganwadi" and as such she is able to maintain herself. Learned counsel has relied on a decision of the Hon'ble Supreme Court in C.V. Rajendran and Anr. v. N.M. Muhammed Kunhi, 2002(4) RCR(Civil) 512 : 2002(2) RCR(Rent) 453 : 2003(1) WLC (SC) Civil 121, wherein the Hon'ble Apex Court held that the principle of res judicata applies as between two stages in same litigation so that issue decided at earlier stage cannot be reagitated at subsequent stage in same proceeding. The judgment relied on by the learned counsel for the petitioner has no application and, therefore, it is of no help to the petitioner for the reason that in the earlier proceedings under Section 125 of the Code, no such issue has been decided. It appears from the order Ex.NA/2 dated 25.5.1983 that the trial Court, without deciding any issue, disposed of the application only on the statement of the parties that they have compromised the matter and, thus, the issue has not been decided.
(3.) LEARNED counsel for the non-petitioner submits that any agreement opposed to public policy cannot be enforced and the non-petitioner cannot be precluded to claim the allowance of maintenance if by evidence she establishes that the petitioner despite having sufficient means, failed to maintain and neglected her, which, according to the learned counsel for the non-petitioner, has been established by her. He has relied on a decision of this Court in Lachhi Ram v. Smt. Shanta and Anr, S.B. Criminal Revision No. 334/2002 decided on 10.3.2004, wherein this Court held that "the agreement Ex.P/1 does not speak of mutual divorce. There is no prohibition for claiming maintenance in future. The agreement Ex.P/1 only speaks to the effect that the said amount is paid to her for maintenance of their child. It is further stipulated that she will maintain the child and when he grows after five years, she will hand-over the child to her husband. Such an agreement is opposed to the public policy. There is statutory obligation on the petitioner to maintain his wife and minor child.;