# Shabana Bano v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Application U/S 482 No. 3559 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shabana-bano-v-state-of-u-p-anr-50109
- **Pages:** 14

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
Sections125
-
Order
for
maintenance of wives , children and
parents , Section126(2) - Proceedings
under section 125 may be taken against
any person in any district - where he or his
wife
resides
,
The
Code
of
Civil
Procedure,1908
-
Section
11
-
Res
Judicata - an issue heard and finally
decided by a Court of limited jurisdiction,
competent to decide such issue, shall
operate as res judicata in a subsequent
suit - In the proceedings initiated by the
5 All. Shabana Bano Vs. State of U.P. & Anr.
15
application under Section 125 Cr.P.C., the
provisions of Section 11 of the Code of
Civil
Procedure
i.e.
principle
of
res
judicata will apply.(Para - 25,35)

Applicant's marriage to opposite party No. 2 -
husband demanded dowry - couple separated in
2013 - husband sent Talaqnama to applicant -
applicant filed application under Section 125
Cr.P.C. - to maintain her and her children -
rejected for lack of prosecution - applicant filed
another application - again rejected by Family
Court - on the principle of res judicata - same
not been finally decided (i.e. on merits) - after
affording opportunity of hearing to applicant -
hence present application. (Para - 3,37)

HELD:- Principle of res judicata only applicable
in second cases where the matter directly and
substantially in issue has been in issue in
previous applications. If the earlier case not
decided finally or without merit, the second case
for the same relief will be maintainable, and the
principle of res judicata will not apply.
Judgement and order passed by family Court
under Section 125 Cr.P.C set aside , directing to
pass a reasoned and speaking order within six
months , after affording opportunity of hearing
to the parties. (Para -30,38)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,869 of 45,826. This is a partial read: ask again with offset=39869 for what follows._

14 INDIAN LAW REPORTS ALLAHABAD SERIES
325, 404, 120-B IPC and Section 7
Criminal Law Amendment Act;

45. Case Crime No.399 of 2010,
under Sections 302, 307, 120-B, 34 IPC,
Section 7 Criminal Law Amendment act
and Section 25 Arms Act;

46. Case Crime No.482 of 2010,
under Section 3(1) U.P. Gangster Act;

47. Case Crime No.891 of 2010,
under U.P. Gangster Act;

48. Case Crime No.20 of 2014,
under Section 147, 148, 149, 302, 307, 506,

120-B
IPC
and
Section
7
Criminal Law Amendment Act;

49. Case Crime No.05 of 2019,
under Sections 386 and 506 IPC;

50. Case Crime No.04 of 2020,
under Sections 419, 420, 467, 468, 471,
120B IPC Section 30 Arms Act;

51. Case Crime No.160 of 2020,
under Section 3(1) U.P. Gangster Act;

52. Case Crime No.236 of 2020,
under Sections 468, 471, 120-B IPC and
Section 3 Sa.Sa.Nu, Adhi;

53. Case Crime No.55 of 2021,
under Section 3(1) U.P. Gangster Act;

54. Case Crime No.369 of 2021,
under Sections 419, 420, 467, 468, 471,
120-B, 506, 177 IPC and Section 7
Criminal Law Amendment Act;

55. Case Crime No.121 of 2021,
under Section 25/26 Arms Act;

56. Case Crime No.185 of 2021,
under Sections 419, 420, 467, 468, 471 and
120-B IPC;

57. Case Crime No.287 of 2022,
under Section 3(1) Gangster Act; and

58. Case Crime No.08 of 2022,
under Section 3(1) Gangster Act.?

12. Considering the aforesaid facts and
the legal position, I am of the view that the
order impugned in the present petition is
not only without jurisdiction but also
unsustainable on merits, therefore, the same
is liable to be set aside.

13. Thus, the petition is allowed and
the impugned order dated 15.3.2022 passed
by
the
First
Additional
Sessions
Judge/Special Judge, MP/MLA, Ghazipur
in Session Trial No10-A of 2010, arising
out of Case Crime No.1182 of 2009, under
Sections 307, 506 and 120-B IPC, Police
Station Mohammadabad, District Ghazipur,
is hereby set aside.
----------
(2023) 5 ILRA 14
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Application U/S 482 No. 3559 of 2023

Shabana Bano ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shobhit Pratap Singh, Sri Mujeeb Khan,
Sri Naveen Kumar

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
Sections125
-
Order
for
maintenance of wives , children and
parents , Section126(2) - Proceedings
under section 125 may be taken against
any person in any district - where he or his
wife
resides
,
The
Code
of
Civil
Procedure,1908
-
Section
11
-
Res
Judicata - an issue heard and finally
decided by a Court of limited jurisdiction,
competent to decide such issue, shall
operate as res judicata in a subsequent
suit - In the proceedings initiated by the
5 All. Shabana Bano Vs. State of U.P. & Anr.
15
application under Section 125 Cr.P.C., the
provisions of Section 11 of the Code of
Civil
Procedure
i.e.
principle
of
res
judicata will apply.(Para - 25,35)

Applicant's marriage to opposite party No. 2 -
husband demanded dowry - couple separated in
2013 - husband sent Talaqnama to applicant -
applicant filed application under Section 125
Cr.P.C. - to maintain her and her children -
rejected for lack of prosecution - applicant filed
another application - again rejected by Family
Court - on the principle of res judicata - same
not been finally decided (i.e. on merits) - after
affording opportunity of hearing to applicant -
hence present application. (Para - 3,37)

HELD:- Principle of res judicata only applicable
in second cases where the matter directly and
substantially in issue has been in issue in
previous applications. If the earlier case not
decided finally or without merit, the second case
for the same relief will be maintainable, and the
principle of res judicata will not apply.
Judgement and order passed by family Court
under Section 125 Cr.P.C set aside , directing to
pass a reasoned and speaking order within six
months , after affording opportunity of hearing
to the parties. (Para -30,38)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:

1. Danial Latifi Vs U.O.I., (2001) 7 SCC 740

2. Capt. Ramesh Chander Kaushal Vs Veena
Kaushal , AIR 1978 SC 1807

3. Chaturbhuj Vs Sita Bai , (2008) 2 SCC 316

4. Shabana Bano Vs Imran Khan , (2010) 1 SCC
666

5. Shamim Bano Vs Asraf Khan , (2014) 12 SCC
636

6. Shamima Farooqui Vs Shahid Khan , (2015) 5
SCC 705

7. Badshah Vs Sou. Urmila Badshah Godse , AIR
2014 SC 869

8. M. Nagabhushana Vs St. of Karn. , (2011) 3
SCC 408

9. Nagendrappa Natikar Vs Neelamma, , AIR
2013 SC 1541

10. Jaswant Singh Vs Custodian of Evacuee
Property , (2004) 3 SCC 277

11. Prem Kishore & ors. Vs Brahm Prakash &
ors. , 2023 SCC OnLine SC 356

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Heard Mr. Naveen Kumar, learned
counsel for the applicant, learned counsel
for opposite party no.2 and learned A.G.A.
for the State.

2. This application under Section 482
Cr.P.C. has been filed on behalf of the
applicant to quash the judgement and order
dated 20th May, 2022 passed by the
Principal Judge, Family Court, Sonbhadra,
in Criminal Case No. 387 of 2019 (Shabana
Bano Vs. Aliraza), under Section 125
Cr.P.C., Police Station-Dudhi, DistrictSonbhadra, whereby the application made
by the applicant under Section 125 Cr.P.C.
has been rejected.

The case of the Applicant

3. The factual matrix of the case in
hand, which has been highlighted by the
applicant is that marriage of applicant and
opposite party no. 2 was solemnized on
4.5.2002 in accordance with Muslim Rites
and Rituals at Dudhi, Sonbhadra and in the
said marriage, about Rs. 40 lacs with Indica
Car were given by applicant's family
members to opposite party no. 2 for
fulfilment
of
dowry. After
marriage
applicant came to her matrimonial house
but after few days of her marriage, the
16 INDIAN LAW REPORTS ALLAHABAD SERIES
husband (opposite party no. 2) and his
family members again demanded Rs. 20
lacs from applicant's family members.
From the aforesaid wedlock, three female
children and a male child was born. When
the family members of the applicant did not
fulfill the aforesaid additional demand of
dowry at Rs. 20 lacs, the opposite party no.
2 and his family members kicked out the
applicant from her matrimonial house on
18.11.2013 with her children and on
2.12.2013, opposite party no. 2 sent
Talaqnama to applicant. Since the applicant
is unskilled housewife/ lady, she is unable
to earn livelihood for herself and her
children, so she filed Criminal Misc.
Application No. 21/2014

(Shabana Bano Versus Ali Raza)
Under Section 125 Cr.P.C. for maintaining
her and her children but the said application
was rejected by learned court below for
want of prosecution on 1.3.2017. After
rejection of the said application under
Section 125 Cr.P.C., the applicant filed
another application under Section 126 (2)
Cr.P.C.
before
the
Principal
Judge,
Family Court, Sonbhadra Being Criminal
Misc. Application No. 138 of 2017,
which has also been rejected/dismissed
by learned Principal Judge Family Court,
Sonbhadra for want of prosecution on 8th
February, 2018. After that the applicant
filed a fresh application under Section
125 Cr.P.C. before the Principal Judge
Family Court, Sonbhadra, which has been
numbered as Criminal Misc Application
No. 387 of 2019 (Shabana Bano Vs. Ali
Raza). This application filed by the
applicant under Section 125 Cr.P.C. has
again been rejected by the Family Court
vide order dated 20th May, 2022 on the
principle of res judicata. It is against this
order that the present application has
been filed.

Finding and conclusion of the
Principal
Judge,
Family
Court,
Sonbhadra while passing the impugned
order:

4. Before passing the impugned order,
the Family Court has framed a conceptual
issue whether after rejection of applications
of the applicant under Sections 125 and 126
(2) Cr.P.C. for want of prosecution vide
orders dated 1st March, 2017 and 8th
February, 2018, fresh application under
Section 125 Cr.P.C. being Criminal Misc
Application No. 387 of 2019 (Shabana
Bano Vs. Ali Raza) is legally maintainable
or not and the applicant has the right to file
a fresh application under Section - 125 of
the Code of Criminal Procedure or not?

5. The Family Court has recorded in
the order impugned that due to the absence
of the applicant, the first application made
by the applicant under Section 125 Cr.P.C.
has been rejected on 01.03.2017 and the
application under section 126 (2) of the
Code of Criminal Procedure, has been
rejected on 8th February, 2018. From the
legal point of view it is apparent that all the
rights have been exercised by the applicant
in respect of Section-125 of the Code of
Criminal Procedure before the Family
Court, Sonbhadra and final decision has
been taken by the Court twice. It has
further been recorded that the proceedings
of Section-125 of the Code of Criminal
Procedure are of a semi-civil nature. The
applicant got the right to apply Section 125
of the Code of Criminal Procedure under
the new case after the case was rejected
twice due to the absence of the applicant. In
the case in question, the said conceptual
question is a question of law, which is
being decided on the basis of merits and
demerits. The facts mentioned in the
present application under Section 125
5 All. Shabana Bano Vs. State of U.P. & Anr.
17
Cr.P.C. cannot be considered until the same
is not legally maintainable.

6. The Principal Judge, Family Court
has further recorded that the proceedings of
Section-125 of the Code of Criminal
Procedure are of a semi-civil nature.
According to Section-36 of the Family
Court Rules, 2006, an order passed under
Chapter-IX of the Code of Criminal
Procedure for maintenance allowance may
be executed by the court by attachment of
salary as provided in Section- 60 and Order
- XXI of the Code of Criminal Procedure,
in addition to the mode of recovery
provided in sub-Section 3 of Section 125
Cr.P.C. It is also notable that the warrant for
recovery of fine is also sent to the District
Collector in Format No. 44 mentioned at
the end of the Code of Criminal Procedure.
It is also necessary to mention here that
under Section-125 Cr.P.C., formal evidence
can be given in affidavit. According to
Order XVIII Rule-4(1) of the Code of Civil
Procedure, 1908, the examination-in-chief
shall be on affidavit. In this way, the
provisions of Civil Procedure Code are also
applicable in miscellaneous case under
Section 125 Cr.P.C. Suit under Section-125
of the Code of Criminal Procedure is SemiCivil Suit in nature. The Principal Judge,
Family Court has further recorded that the
order dated 1st March, 2017 rejecting the
application of the applicant under Section
125 Cr.P.C. and the order dated 8th
February, 2018 rejecting the application of
the applicant under Section 126 (2) Cr.P.C.
attract Section-11 of the Code of Civil
Procedure, 1908, as in both the abovementioned miscellaneous applications i.e
under Section 125 and 126 (2) Cr.P.C. and
the fresh miscellaneous application under
Section 125 Cr.P.C., the parties, the court
and the contentious facts are the same. On
the basis of such finding, the Principal
Judge, Family Court has come to the
conclusion that the fresh application under
Section
125
Cr.P.C.,
being
Criminal
Miscellaneous Case No. 387 of 2019 is
barred by the principle of res judicata
embodied in Section 11 of the Code of
Civil Procedure.

7. Apart from the above, the Principal
Judge, Family Court has also opined that
the application under Section 125 Cr.P.C. in
question has been filed about one and a half
years after 2018 and no explanation has
been given by the applicant in her plaint for
that delay and facts has also not been
mentioned by the applicant. There is no
legal
justification
to
bring
a
new
application under Section 125 Cr.P.C.
before the court once her application has
been rejected for seeking maintenance in
Section-126 (2) of the Code of Criminal
Procedure.

8. On the basis of the aforesaid
findings, the Principal Judge, Family Court,
Sonbhadra
has
held
that
the
new
application under Section 125 Cr.P.C. being
Criminal Misc. Application No. 387 of
2019 (Shabana Bano Vs. Ali Raza)
deserves to be dismissed as not being
legally maintainable.

9. Submission of the learned counsel
for the applicant

(i) It is no doubt true that the
application Under Section 125 Cr.P.C. is
criminal in nature but few provisions of
civil procedures are applied in the case of
the applicant like the principle of res
judicata. However, as per the definition of
res judicata, it shall only be applicable in
the case when the earlier case for the same
cause of action and on same ground has
been
finally
decided/rejected.
The
18 INDIAN LAW REPORTS ALLAHABAD SERIES
applications of the applicant under Section
125 Cr.P.C. and 126 (2) Cr.P.C. has not
been decided on merits the same has been
rejected for want of prosecution.

(ii) Through opposite party no. 2,
who is holding a very high post in Judiciary
and also an infallible person, is presently
posted as Additional District Judge, taking
advantage of his influence, he is getting the
applicant's applications rejected again and
again..

(iii) The first application under
Section 125 Cr.P.C. filed by the applicant
was rejected on the ground of non
appearance but applicant being innocent
housewife had no knowledge about the date
in her case because of non communication
by her counsel.

(iv). The applicant has no source
of income and she is residing alone in her
parental house from 18.11.2013 and her
mother and father had also died.

(v). The learned court below has
committed manifest error of law in
rejecting the application of the applicant
under Section 125 Cr.P.C. on the ground of
maintainability.

10. In support of his case, learned
counsel for the applicant has placed
reliance upon following judgments of (i)
the Apex Court in the case of Pritam Singh
& Another Vs. The State of Punjab reported
in AIR 1956 SC 415; (ii) the Apex Court in
the case of Dawalsab Vs. Khajasab
reported in 2009 0 Supreme (SC) 1239; and
(iii) Punjab & Haryana High Court in the
case of Manish Tandon Vs. Ankita Bhutani
reported in 2017 LawSuit (P&H) 2449; (iv)
the Delhi High Court in the case of Khem
Chand Kataria VS. Shakuntala Devi
reported in II (1983) D.M.C. 201; and the
Rajasthan High Court in the case of Jagdish
Chandra Vs. Hemlata & Others reported in
1986 LawSuit (Ra) 526.

On the cumulative strength of the
aforesaid, learned counsel for the applicant
submits that the order impugned passed by
the Family Court cannot be legally
sustained and is liable to be quashed.

Submissions of the learned A.G.A.
for the State

11. On the other-hand, learned A.G.A.
controverts the submissions made by the
learned counsel for the applicant by
submitting that any suit/case, which has
been decided either on merits i.e. finally or
otherwise, the second suit/case will not be
maintainable on the principle of res
judicata. In support of his plea, learned
A.G.A. has placed reliance upon the
judgments of (i) Patna High Court in the
case of Mahanth Girjanand Bhagat &
Another Vs. Bhagwan Bhagat & Others
reported in 1966 SCC OnLine Pat 38; (ii)
Mysore High Court Kempegowda Vs.
Annegowda & Others reported in 1950
SCC OnLine Kar 42; and (iii) C.
Subramanyam Vs. C. Sumathi & Another
reported in 2003 (2) ALD Cri 905.

On the cumulative strength of the
aforesaid, learned A.G.A. submits that there
is no illegality or infirmity in the order
passed by the Family Court rejecting the
application of the applicant under Section
125 Cr.P.C. on the ground of res judicata,
as such the present applicant has no merit
and is liable to be dismissed.

12. I have heard the learned counsel
for the applicant, learned A.G.A. for the
State and have gone through the records of
the present application including the order
impugned.

Aim and Object of Proceedings
under Section 125 Cr.P.C.
5 All. Shabana Bano Vs. State of U.P. & Anr.
19

13. Before coming to the merits of the
case set up by the parties firstly this Court
comes on the aim and object of Section 125
Cr.P.C.

14. Section 125 of the Code of
Criminal Procedure has been enacted to
achieve a social object and the object is to
prevent vagrancy and destitution and to
provide speedy remedy to deserted or
divorced wife, minor children and infirm
parents in terms of food, clothing and
shelter and minimum needs of one's life.
The Supreme Court has been always of the
view that maintenance to the wife is an
issue of gender justice and the obligation of
the husband is on a higher pedestal.

15. In the case of Danial Latifi Vs.
Union of India reported in (2001) 7 SCC
740, the Apex Court has opined as follows:

"In interpreting the provisions
where matrimonial relationship is involved,
we have to consider the social conditions
prevalent in our society. In our society,
whether they belong to the majority or the
minority group, what is apparent is that
there exists a great disparity in the matter
of economic resourcefulness between a man
and a woman. Our society is male
dominated both economically and socially
and women are assigned, invariably, a
dependant role, irrespective of the class of
society to which she belongs. A woman on
her marriage very often, though highly
educated, gives up her all other avocations
and entirely devotes herself to the welfare
of the family, in particular she shares with
her husband, her emotions, sentiments,
mind and body, and her investment in the
marriage is her entire life a sacramental
sacrifice of her individual self and is far
too enormous to be measured in terms of
money. When a relationship of this nature
breaks up, in what manner we could
compensate her so far as emotional
fracture or loss of investment is concerned,
there can be no answer. It is a small solace
to say that such a woman should be
compensated in terms of money towards
her livelihood and such a relief which
partakes basic human rights to secure
gender and social justice is universally
recognised by persons belonging to all
religions and it is difficult to perceive that
Muslim law intends to provide a different
kind of responsibility by passing on the
same to those unconnected with the
matrimonial life such as the heirs who were
likely to inherit the property from her or the
wakf boards. Such an approach appears to
us to be a kind of distortion of the social
facts. Solutions to such societal problems of
universal magnitude pertaining to horizons
of basic human rights, culture, dignity and
decency of life and dictates of necessity in
the pursuit of social justice should be
invariably
left
to
be
decided
on
considerations other than religion or
religious faith or beliefs or national,
sectarian, racial or communal constraints.
Bearing this aspect in mind, we have to
interpret the provisions of the Act in
question."

16. In Capt. Ramesh Chander
Kaushal v. Veena Kaushal reported in
AIR 1978 SC 1807, the Hon'ble Supreme
Court remarked:

"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."

17. In the case of Chaturbhuj vs Sita
Bai reported in (2008) 2 SCC 316, the
Hon'ble Supreme Court expressed the view
20 INDIAN LAW REPORTS ALLAHABAD SERIES
that Section 125 Cr.P.C. is a measure of
social justice and is specially enacted to
protect women and children and it gives
effect to fundamental rights and natural
duties of a man to maintain his wife,
children and parents when they are unable
to maintain themselves. The Hon'ble
Supreme Court observed:

"Section
125,
Cr.P.C.
is
a
measure of social justice and is specially
enacted to protect women and children and
as noted by this Court in Captain Ramesh
Chander Kaushal v. Veena Kaushal (1978)
4 SCC 70 falls within constitutional sweep
of Article 15(3) reinforced by Article 39 of
the Constitution of India. It is meant to
achieve a social purpose. The object is to
prevent
vagrancy
and
destitution.
It
provides a speedy remedy for the supply of
food, clothing and shelter to the deserted
wife. It gives effect to fundamental rights
and natural duties of a man to maintain his
wife, children and parents when they are
unable
to
maintain
themselves.
The
aforesaid position was highlighted in
Savitaben Somabhai Bhatiya v. State of
Gujarat (2005) 3 SCC 636."

18. In Shabana Bano v. Imran Khan
reported in (2010) 1 SCC 666 in a petition
for maintenance under Section 125, one of
the objections raised by the husband was
that he has already divorced the wife prior
to filing of petition in accordance with
Muslim Law and under the provisions of
Muslim Women (Protection of Rights on
Divorce) Act, 1986 she is not entitled to
any maintenance after the divorce and after
the expiry of the iddat period, however, the
Hon'ble Supreme Court has held that even
after the disposal of application under
Section 3 of the Act, the divorced wife is
entitled to claim maintenance under Section
125 beyond the iddat period and till she
remarries. The same view has been
followed in Shamim Bano v. Asraf Khan
reported in (2014) 12 SCC 636.

19. Reiterating the same view, in
Shamima Farooqui Vs. Shahid Khan
reported in (2015) 5 SCC 705, the Hon'ble
Supreme Court has made very following
observation:

"......................

"Be it clarified that sustenance
does not mean and can never allow to
mean a mere survival. A woman, who is
constrained to leave the marital home,
should not be allowed to feel that she has
fallen from grace and move hither and
thither arranging for sustenance. As per
law, she is entitled to lead a life in the
similar manner as she would have lived in
the house of her husband. And that is where
the status and strata of the husband comes
into play and that is where the legal
obligation of the husband becomes a
prominent one. As long as the wife is held
entitled to grant of maintenance within the
parameters of Section 125, CrPC, it has to
be adequate so that she can live with
dignity as she would have lived in her
matrimonial
home.
She
cannot
be
compelled to become a destitute or a
beggar."

.......

When the woman leaves the
matrimonial home, the situation is quite
different. She is deprived of many a
comfort. Sometimes the faith in life reduces.
Sometimes, she feels she has lost the
tenderest friend. There may be a feeling
that her fearless courage has brought her
the misfortune. At this stage, the only
comfort that the law can impose is that the
husband is bound to give monetary
comfort. That is the only soothing legal
5 All. Shabana Bano Vs. State of U.P. & Anr.
21
balm, for she cannot be allowed to resign
to destiny."

20. In the case of Badshah v. Sou.
Urmila Badshah Godse reported in AIR
2014 SC 869, though related to standard of
proof of legal marriage in a case under
Section 125 of the Code, the Supreme
Court made a very emphatic observation
regarding the ambit and object of the law
provided by Section 125 of the Code.

21. From the records of the present
application as well as from the order
impugned, it is an admitted position that
earlier two applications filed by the
applicant before the Principal Judge,
Family
Court,
Sonbhadra have
been
rejected in default/for want of prosecution,
meaning thereby that the same have not
been finally decided i.e. on merits.

Framing of Issues

22. The legal issues born out from the
records of the present application, which
has also been admitted by the learned
counsel for the parties are as under:

(a) Whether in the proceedings
under Section 125 Cr.P.C., the provision of
Section 11 of the Cr.P.C. i.e. principle of
res judicata will apply or not?;

(b) Whether the principle of res
judicata will apply in the case of the
applicant under Section 125 Cr.P.C.?; and

(c) Whether fresh application
under Section 125 Cr.P.C. filed by the
applicant is maintainable or not, after her
two applications under Sections 125 and
126 (2) Cr.P.C. have been rejected for want
of prosecution.

Answer on Issue no. (a)

23. For examining the first issue in
hand i.e. (a), it is necessary for this Court to
discuss about the nature of the proceedings
under Section 125 Cr.P.C. No doubt, it is a
social
legislation
to
protect
the
women/children/parents, who are in need
of
support.
When
such
claim
for
maintenance is made under the personal
law, the right is decided by the Civil Court,
only with a view to have a speedy disposal
of such claims for maintenance, having
regard to the urgent need of the victims of
desertion and neglect. While making such
provision, the Parliament thought it fit to
incorporate the provision to enable the
victims to claim maintenance through the
criminal
court.
Thus,
though
a
petition/application under Section 125 (1)
Cr.P.C. is made before the criminal court
as defined under Section 6 Cr.P.C., the
right that is decided by the said Court is
purely
civil
in
nature.
Therefore,
undoubtedly, the order made by the
Magistrate under Section 125 (1) Cr.P.C.
for maintenance is the culmination of
such a civil right of an individual. But,
Section 125 (3) of the Code empowers
the Court to impose a sentence of
imprisonment, in the event of failure to
obey such order made under Section 125
(1) Cr.P.C. To this extent, the proceeding is
criminal
in
nature.
To
put
it
comprehensively, a proceeding initiated
under Section 125 Cr.P.C. is quasi-civil
and quasi-criminal. The Apex Court has
held so in several judgements. Regarding
the procedure for making claim before
the Court for maintenance, what is filed
under Section 125 (1) Cr.P.C. is a pure
and simple petition/application and not a
complaint as defined in Section 2 (d) of
the Code. This would again indicate that
a proceeding under Section 125 Cr.P.C. is
treated as a quasi-civil and quasi criminal
proceeding.
22 INDIAN LAW REPORTS ALLAHABAD SERIES

24. In the case of M. Nagabhushana
Vs. State of Karnataka reported in (2011)
3 SCC 408, the Apex Court has held that
principle of res judicata will apply
universally meaning thereby that the same
shall apply to both civil and criminal
proceedings in order to secure the interest
of justice and multiple litigations. The
observation
of
the
Apex
Court
is
reproduced herein-under:

"The principles of Res Judicata
are of universal application as it is based
on two age old principles, namely, `interest
reipublicae ut sit finis litium' which means
that it is in the interest of the State that
there should be an end to litigation and the
other principle is `nemo debet his ve ari, si
constet curiae quod sit pro un aet eademn
cause' meaning thereby that no one ought
to be vexed twice in a litigation if it
appears to the Court that it is for one and
the same cause. This doctrine of Res
Judicata is common to all civilized system
of jurisprudence to the extent that a
judgment after a proper trial by a Court of
competent jurisdiction should be regarded
as final and conclusive determination of the
questions litigated and should for ever set
the controversy at rest.

15. That principle of finality of
litigation is based on high principle of
public policy. In the absence of such a
principle great oppression might result
under the colour and pretence of law in as
much as there will be no end of litigation
and a rich and malicious litigant will
succeed in infinitely vexing his opponent by
repetitive suits and actions. This may
compel the weaker party to relinquish his
right. The doctrine of Res Judicata has
been evolved to prevent such an anarchy.
That is why it is perceived that the plea of
Res Judicata is not a technical doctrine but
a fundamental principle which sustains the
Rule of Law in ensuring finality in
litigation. This principle seeks to promote
honesty and a fair administration of
justice and to prevent abuse in the matter
of accessing Court for agitating on issues
which have become final between the
parties."
(Emphasis supplied)

25. In view of the aforesaid, this Court
is of the firm opinion that in the
proceedings initiated by the application
under Section 125 Cr.P.C., the provisions of
Section 11 of the Code of Civil Procedure
i.e. principle of res judicata will apply.

Answer on Issue nos. (b) & (c)

26. For examining the second and
third issues i.e. (b) & (c), it is important for
this Court to refer to Section 11 of the
C.P.C. wherein the principle of res judicata
has been defined, which is being quoted
herein below:

"11. No Court shall try any suit
or issue in which the matter directly and
substantially in issue has been directly and
substantially in issue in a former suit
between the same parties, or between
parties under whom they or any of them
claim, litigating under the same title, in a
Court competent to try such subsequent suit
or the suit in which such issue has been
subsequently raised, and has been heard
and finally decided by such Court.

Explanation I.-- The expression
former suit shall denote a suit which has
been decided prior to a suit in question
whether or not it was instituted prior
thereto.

Explanation
II.--
For
the
purposes of this section, the competence of
a Court shall be determined irrespective of
5 All. Shabana Bano Vs. State of U.P. & Anr.
23
any provisions as to a right of appeal from
the decision of such Court.

Explanation
III.--The
matter
above referred to must in the former suit
have been alleged by one party and either
denied or admitted, expressly or impliedly,
by the other.

Explanation IV.-- Any matter
which might and ought to have been made
ground of defence or attack in such former
suit shall be deemed to have been a matter
directly and substantially in issue in such
suit.

Explanation
V.--
Any
relief
claimed in the plaint, which is not expressly
granted by the decree, shall for the
purposes of this section, be deemed to have
been refused.

Explanation VI.-- Where persons
litigate bona fide in respect of a public
right or of a private right claimed in
common for themselves and others, all
persons interested in such right shall, for
the purposes of this section, be deemed to
claim under the persons so litigating .

Explanation VII.-- The provisions
of this section shall apply to a proceeding
for the execution of a decree and references
in this section to any suit, issue or former
suit shall be construed as references,
respectively, to a proceeding for the
execution of the decree, question arising in
such proceeding and a former proceeding
for the execution of that decree.

Explanation VIII.-- An
issue
heard and finally decided by a Court of
limited jurisdiction, competent to decide
such issue, shall operate as res judicata in
a subsequent suit, notwithstanding that
such Court of limited jurisdiction was not
competent to try such subsequent suit or the
suit in which such issue has been
subsequently raised."

27. The "principle of res judicata"
literally means a "thing adjudicated" or "an
issue that has been definitively settled by
judicial decision". The principle operates as
a bar to try the same issue once over. It
aims to prevent multiplicity of proceedings
and accords finality to an issue, which
directly and substantially had arisen in the
former suit between the same parties or
their privies and was decided and has
become final, so that the parties are not
vexed twice over; vexatious litigation is put
an end to and valuable time of the court is
saved.

28. In Nagendrappa Natikar vs
Neelamma, reported in AIR 2013 SC 1541,
the question was whether a compromise
entered into by husband and wife under
Order XXIII, Rule 3 of the Code of Civil
Procedure
(C.P.C.)
agreeing
for
a
consolidated amount towards permanent
alimony and thereby giving up any future
claim for maintenance, accepted by the
Court in a proceeding under Section 125 of
the Code of Criminal Procedure (Cr.P.C.),
would preclude the wife from claiming
maintenance in a suit filed under Section 18
of the Hindu Adoptions and Maintenance
Act, 1956 ? In this case, after the petition
was
disposed
of
on
the
basis
of
compromise, the respondent wife filed a
Misc. Application under Section 127,
Cr.P.C. before the Family Court for
cancellation of the earlier order and also for
awarding future maintenance. While the
application under Section 127, Cr.P.C. was
pending, respondent wife also filed a suit
before the Family Court under Section 18
of the Hindu Adoption and Maintenance
Act claiming maintenance at the rate of
Rs.2,000/- per month. Both the petitions
were resisted by the husband stating that
the
parties
had
already
reached
a
compromise with regard to the claim for
24 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance.
The
question
of
maintainability was raised as a preliminary
issue. The Family Court held by its order
dated 15.9.2009 that the compromise
entered into between the parties in a
proceeding under Section 125, Cr.P.C.
would not be bar in entertaining a suit
under Section 18 of the Act. The suit was
then finally heard on 30.9.2010 and the
Family Court decreed the suit holding that
the respondent is entitled to monthly
maintenance of Rs.2,000/- per month from
the defendant husband from the date of the
filing of the suit. The High Court also
confirmed the same.

29. Upholding the judgment of the
High Court, the Hon'ble Supreme Court
pointed out that Section 25 of the Contract
Act provides that any agreement which is
opposed to public policy is not enforceable
in a Court of Law and such an agreement is
void, since the object is unlawful. The
Court held that 'Proceeding under
Section 125, Cr.P.C. is summary in
nature and intended to provide a speedy
remedy to the wife and any order passed
under
Section
125,
Cr.P.C.
by
compromise
or
otherwise
cannot
foreclose the remedy available to a wife
under Section 18(2) of the 1956 Act' and
observed:

"Section 125, Cr.P.C. is a piece of
social legislation which provides for a
summary and speedy relief by way of
maintenance to a wife who is unable to
maintain herself and her children. Section
125 is not intended to provide for a full and
final determination of the status and
personal rights of parties, which is in the
nature of a civil proceeding, though are
governed by the provisions of the Cr.P.C.
and the order made under Section 125,
Cr.P.C. is tentative and is subject to final
determination of the rights in a civil court."

30. In Jaswant Singh Vs. Custodian
of Evacuee Property reported in (2004) 3
SCC 277, the Apex Court has laid down a
test for determining whether a subsequent
suit is barred by res judicata:

"14....In order that a defence of
res judicata may succeed it is necessary to
show that not only the cause of action was
the same but also that the plaintiff had an
opportunity of getting the relief which he
is now seeking in the former proceedings.
The test is whether the claim in the
subsequent suit or proceedings is in fact
founded upon the same cause of action
which was the foundation of the former suit
or proceedings."

31. In both the cases of Nagendrappa
Natikar and Jaswant Singh (Supra), the
Apex Court has clarified that if the earlier
suit is not decided on merits, meaning
thereby that the same is decided on the
basis of compromise without entering into
the merits of the case and without affording
opportunity
of
hearing
to
the
claimant/applicant, the second suit/case for
the same relief will be maintainable.

32. Similarly dealing with the same
issue, the Apex Court in its latest judgment
in the case of Prem Kishore & Others Vs.
Brahm Prakash & Others reported in
2023 SCC OnLine SC 356, in paragraph
nos. 37 and 38 has held as follows:

"37. On a perusal of the above
authorities, the guiding principles for
deciding an application under Order 7 Rule
11(d) of the CPC can be summarized as
follows:-
5 All. Shabana Bano Vs. State of U.P. & Anr.
25

(i) To reject a plaint on the
ground that the suit is barred by any law,
only the averments in the plaint will have to
be referred to;

(ii) The defence made by the
defendant in the suit must not be considered
while
deciding
the
merits
of
the
application;

(iii) To determine whether a suit
is barred by res judicata, it is necessary
that (i) the 'previous suit' is decided, (ii) the
issues in the subsequent suit were directly
and substantially in issue in the former
suit; (iii) the former suit was between the
same parties or parties through whom they
claim, litigating under the same title; and
(iv) that these issues were adjudicated and
finally decided by a court competent to try
the subsequent suit; and

(iv) Since an adjudication of the
plea of res judicata requires consideration
of the pleadings, issues and decision in the
'previous suit', such a plea will be beyond
the scope of Order 7 Rule 11 (d), where
only the statements in the plaint will have
to be perused.

(See: Srihari Hanumandas Totala
v. Hemant Vithal Kamat. (2021) 9 SCC 99)

38. The general principle of res
judicata under Section 11 of the CPC
contain
rules
of
conclusiveness
of
judgment, but for res judicata to apply, the
matter directly and substantially in issue in
the subsequent suit must be the same matter
which was directly and substantially in
issue in the former suit. Further, the suit
should have been decided on merits and the
decision should have attained finality.
Where the former suit is dismissed by the
trial court for want of jurisdiction, or for
default of the plaintiff's appearance, or on
the ground of non-joinder or mis- joinder
of parties or multifariousness, or on the
ground that the suit was badly framed, or
on the ground of a technical mistake, or for
failure on the part of the plaintiff to
produce probate or letter of administration
or succession certificate when the same is
required by law to entitle the plaintiff to a
decree, or for failure to furnish security for
costs, or on the ground of improper
valuation, or for failure to pay additional
court
fee
on
a
plaint
which
was
undervalued, or for want of cause of action,
or on the ground that it is premature 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."

33. From the deeper scrutiny of the
aforesaid principle of res judicata and the
commentary
given
by
Sir
Dinshah
Fardunji Mulla (18th Edition-2011) on
Code of Civil Procedure, this Court is of
view that the principle of res judicata
would apply only when a matter will be
said to have been "heard and finally
decided" notwithstanding that the earlier
matter/case/suit was disposed off in any of
the following ways:

"(i) ex parte; or

(ii) by dismissal under Order
XVII, Rule 3, but not when the dismissal is
under Order XVI, Rule 1 for failure to pay
adjournment cost; or

(iii) by a decree on an award; or

(iv) by oath tendered under
Section 8 of the Indian Oaths Act, 1873; or

(v)
by
dismissal
owing
to
plaintiff's failure to adduce evidence at the
hearing."

34. The principle of res judicata will
have no application when the earlier
matter/case/suit has not been heard and
finally decided and the same has been
dismissed:
26 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) for want of jurisdiction; or

(ii) for default of plaintiff's
appearance under Order IX, Rule 8. (But,
a fresh suit on the same cause of action
may be barred under Order IX, Rule 9); or

(iii) on the ground of non-joinder
of parties, or misjoinder of parties, or
multifariousness; or on the ground that the
suit was badly for default of plaintiff's
appearance under Order IX, Rule 8.