# Shankh Saxena v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 1122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-18
- **Case number:** Application U/S 482 No. 8366 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankh-saxena-v-state-of-u-p-anr-52520
- **Pages:** 21

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 125 & 482 - Family Courts
Act, 1984 - Section 10 - Application -
challenging the maintainability of the second
application
preferred
u/s
125
Cr.P.C.
-
matrimonial dispute - wife (opposite party no. 2)
filed maintenance proceedings - on account of
some typographical error she filed an application
seeking withdrawal of her application u/s 125
Cr.P.C - dismissed as not press - second
application u/s 125 Cr.P.C. filed - objection was
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1123
filed by Applicant (husband) - raising the issue
of maintainability of second application on the
ground principle of 'Res Judicata' - court finds
that - proceedings u/s 125 Cr.P.C. are summary
in nature - refusal by a man to maintain his wife
and children whom he is bound to maintain
under law, would be covered under maxim "de
die in diem", which means "ding something
every-day" - held, second application filed by
wife u/s 125 Cr.P.C., though the earlier was
dismissed without providing liberty to file fresh,
would be maintainable - accordingly, Application
dismissed. (Para -22, 24, 25)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,951 of 60,794. This is a partial read: ask again with offset=39951 for what follows._

1122 INDIAN LAW REPORTS ALLAHABAD SERIES
Bulandshahr, vide order dated 02.01.2018
for the offence under Sections 315 and 511
I.P.C. and under Section 4/5(2)6(a)/23/25
of the PC & PNDT Act, is an impermissible
exercise in view of the findings recorded by
this Court hereinabove. Therefore, the
cognizance order as well as the F.I.R. and
the charge-sheet deserve to be quashed, as
the Magistrate is incompetent to take
cognizance of such charge-sheet/police
report, specifically, for the offence under
the provisions of PC & PNDT Act.
Therefore, in the considered opinion of this
Court the entire proceedings of the instant
case is vitiated and deserve to be quashed
and are hereby quashed. The instant
application is allowed accordingly.

The Certificate under Article
134A read with Article 134 (1)(C) of the
Constitution of India

87.

As
have
been
noted
hereinabove, with regard to the following
questions related to the PC & PNDT Act,
there are divergent views of the different
High Courts, which are required to be
settled by the Apex Court:

(A)
Whether,
for
the
offences under the PC& PNDT Act,
the registration of FIR at the police
station
is
permissible,
merely
because the offences under PC &
PNDT
Act
have
been
made
cognizable and non-bailable?
(B) Whether the police
investigation is permissible for the
offences under the PC & PNDT
Act? AND Who can investigate the
complaints, received for violation
of the provisions of the PC& PNDT
Act?
(C) Whether on the charge
sheet
submitted
after
the
investigation by the police, the
competent magistrate can take
cognizance of the offence under the
PC & PNDT Act?

89. Therefore, in the considered
opinion of this Court, it is necessary that
above questions be authoritatively settled
by the Apex Court. In view thereof, it is
certified that it is a fit case for appeal to be
filed before the Apex Court under Article
134(1)(c) read with Article 134A of the
Constitution of India with regard to the
aforesaid questions for an authoritative
pronouncement by the Apex Court.
----------
(2024) 9 ILRA 1122
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.09.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482 No. 8366 of 2024

Shankh Saxena ...Applicant
Versus
State of U.P. & Anr. ...Respondents

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

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 125 & 482 - Family Courts
Act, 1984 - Section 10 - Application -
challenging the maintainability of the second
application
preferred
u/s
125
Cr.P.C.
-
matrimonial dispute - wife (opposite party no. 2)
filed maintenance proceedings - on account of
some typographical error she filed an application
seeking withdrawal of her application u/s 125
Cr.P.C - dismissed as not press - second
application u/s 125 Cr.P.C. filed - objection was
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1123
filed by Applicant (husband) - raising the issue
of maintainability of second application on the
ground principle of 'Res Judicata' - court finds
that - proceedings u/s 125 Cr.P.C. are summary
in nature - refusal by a man to maintain his wife
and children whom he is bound to maintain
under law, would be covered under maxim "de
die in diem", which means "ding something
every-day" - held, second application filed by
wife u/s 125 Cr.P.C., though the earlier was
dismissed without providing liberty to file fresh,
would be maintainable - accordingly, Application
dismissed. (Para -22, 24, 25)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

1. Anju Garg & anr.Vs Deepak Kumar Garg -
2022 SCC online SC 1314,

2. Jaihind Sahakari Pani Purvatha Mandali Ltd.
Vs Rajendra Bandu Khot & ors.- 2019 SCC
online Bom. 13271,

3. Nagendrappa Natikar Vs Neelamma - 2014
vol. 14 SCC 452,

4. Prem Kishore & ors.Vs Brahm Prakash & ors.-
2023 SCC online SC 356,

5. Sammruddhi Cooperative Housing Society
Ltd. Vs Mumbai Mahalaxmi Construction Pvt.
Ltd. - 2022 vol. 4 SCC 103,

6. Shyam Bahadur Singh Vs St. of U.P. - 2023
AHC 914038,

7. Sarguja Transport Service Vs St. Transport
Appellate Tribunal, MP Gwalior & ors.- AIR 1987
SC 88,

8. Sanjeev Kapoor Vs Chandana Kapoor & ors.-
2020 vol. 13 SCC 172.

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
applicant, Sri Ajay Kumar Srivastava,
learned AGA for the State of U.P. and
perused the record.
2. By means of this application,
the applicant has sought the following main
relief(s):-

"WHEREFORE, it is most
respectfully
prayed
that
this
Hon'ble Court may kindly be
pleased to quash the impugned
order dated-31/08/2024, passed by
the Learned Additional Principal
Judge-07, Family Court, Lucknow,
passed in Criminal Miscellaneous
Case Number-973/2023 in Saumya
Sinha vs. Shankh Kumar Saxena,
U/s.125 Cr.P.C. annexed herewith
as
Annexure
No.1
to
this
Application and may also dismiss
the case so that the applicant may
live peacefully under the protection
of law."

3. Vide order, under challenge,
dated 31.08.2024, the Additional Principal
Judge-7,
Family
Court,
Lucknow
(hereinafter referred to as "trial court")
entertained the application preferred by the
opposite party No. 2/Somya Saxena under
Section 125 of the Code of Criminal
Procedure,
1973
(in
short
"Cr.P.C.")
registered as Case No. 973/2023 (Somya
Sinha vs. Shankh Kumar Saxena).

4. Brief facts of the case in hand
are to the effect that an application dated
04.01.2023, registered as Criminal Case
No. 25/2023 (Somya Saxena vs. Shankh
Saxena), under Section 125 Cr.P.C. was
preferred by the opposite party No. 2 in the
court of Principal Judge, Family Court,
Lucknow and thereafter, on account of
some typographical error, the opposite
party No. 2/Somya Saxena preferred an
application
dated
16.05.2023
seeking
withdrawal of the application under Section
125 Cr.P.C. preferred by her registered as
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Case No. 25 of 2023. The
contents
of
the
application
dated
16.05.2023 are extracted hereunder:-

"प्र थान -पत् ि स्ते उपरोि ि द पर बल न
सदये ज ने / ि प सलये ज ने हेतु:-
महोदय,
प्र सथानी क म ननीय न्य य लय े सनिेदन
सनम्नित है:-
1- यह सक उपरोि ि द म ननीय न्य य लय
के मि आज सदन िंक 16/05/2023 को ुनि ई
हेतु सनयत है।
2- यह सक ि द उपरोि में कई त्ुसटय िं हो
ज ने के क रण प्र सथानी दू र नय ि द द सखल करन
च हती है तथ उपरोि ि द ि प लेन च हती है।
3- यह सक ऐ ी सस्थसत में ि द उपरोि पर
बल न सदये ज ने तथ ि प सलय ज न न्य यसहत में
उसचत एििं आिश्यक है।
अतः म ननीय न्य य लय े सिनम्र सनिेदन
है सक उपरोि ि द को बलहीन करके ि प सलये ज ने
क आदेि प ररत करने की कृप करें।"

5. From a perusal of above quoted
portion of the application dated 16.05.2023,
it is apparent that on account of some
typographical error, the opposite party No.
2/Somya Saxena, on account of some errors
in the application under Section 125
Cr.P.C., moved an application before the
court concerned permitting her to withdraw
the application under Section 125 Cr.P.C.
i.e. Case No. 25/2023 (Somya Saxena vs.
Shankh Saxena) and this prayer was sought
with an intention to file a fresh case under
the said provision i.e. Section 125 Cr.P.C.

6. Thereafter, the Principal Judge,
Family Court, Lucknow vide order dated
21.05.2023 after considering the averments
made
in
above
quoted
application,
dismissed the said case for want of
prosecution and no liberty was granted to
opposite party No. 2/Somya Saxena to file
a fresh case under Section 125 Cr.P.C. The
order dated 21.05.2023 reads as under:-

"21.05.2023
आज पत् िली लोक अद लत में पेि हुई।
ि सदनी की ओर े प्र थान पत् ए 13
प्रस्तुत ि द में बल न सदये ज ने क कथन सकय ।
ि सदनी क कथन है सक उपरोि ि द में त्ुसटय िं प ये
ज ने के क रण िह उि मुकदम को न टप्रे करन
च हती है।
 ुन एििं पत् िली क अिलोकन सकय ।
पत् िली के अिलोकन े स्पि है सक ि सदनी द्व र उि
ि द ि र 125 दण्ड प्रसिय िंसहत के तहत सिपिी
के सिरूद्ध प्रस्तुत सकय थ । चूिंसक ि सदनी उि ि द में
बल नहीं देन च हती है। अतः ि सदनी क ि द बल न
सदये ज ने के आि र पर सनरस्त सकये ज ने योग्य है।
आदेि
प्रस्तुत ि द ि सदनी द्व र बल न सदये ज ने
के आि र पर सनरस्त सकय ज त है।
पत् िली सनयम नु र द सखल दफ्तर हो।"

7. After the aforesaid, the opposite
party No. 2/Somya Saxena preferred a fresh
case registered as Case No. 973 of 2023
(Somya Sinha vs. Shankh Kumar Saxena),
in which, an objection was filed by the
applicant
raising
the
issue
of
maintainability of the case on the ground,
in nutshell, to the effect that in view of
principle of "Res Judicata", subsequent
application under Section 125 Cr.P.C. is not
maintainable. In other words, it has been
stated by the applicant before the court
concerned that liberty was not granted to
the opposite party No. 2/Somya Saxena to
file a fresh case, as such, the instant
application under Section 125 Cr.P.C. is
neither entertainable nor maintainable and
being so, without adjudicating the same on
merits, it is liable to be dismissed.

8. The trial court thereafter
considering the aforesaid facts including
the ground aforesaid taken by the applicant
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1125
herein that earlier application filed by the
opposite
party
No.
2/Somya
Saxena
registered as Case No.25/2023 (Somya
Saxena vs. Shankh Saxena) was dismissed
as withdrawn without liberty to file a fresh
case as also the observations made by this
Court in the judgment passed in the case of
Shyam Bahadur Singh vs. State of U.P.
reported in 2023 AHC 914038 rejected the
objection of the opposite party/applicant
herein
vide
order
impugned
dated
31.08.2024 and entertained the application
fixing 19.09.2024 as date for filing of
objection. The relevant portion of the order
dated 31.08.2024 is extracted hereunder:-

" ुन तथ पत् िली क अिलोकन सकय
अिलोकन े सिसदत होत है सक उि ि द में सिपिी
द्व र ये कहते हुए आपसत्त की गयी है सक प्र सथानी द्व र
पुनः तथ्यों को बदलते हुए पुनः उि प्र थान पत् प्रस्तुत
सकय गय है।
प्र सथाय द्व र पूिा में एक प्र थान पत्
अन्तगात ि र 125 ी०आर०पी० ी० प्रस्तुत सकय
गय थ । जो उ के द्व र इ आश्य के थ ि प
सलय गय थ , सक उि प्र थान पत् में सलसपकीय त्ुसट है
सज के क रण े िह अपन ि द ि प लेन च हती है।
उ के द्व र पुनः प्र थान पत् अन्तगात ि र
125 ी०आर०पी० ी० प्रस्तुत सकय गय है। म ननीय
उच्च न्य य लय द्व र अपने सनणाय श्य म बह दुर स िंह
बन म उत्तर प्रदेि रक र 2023 AHC 914038
में अिि ररत सकय गय है सक..
"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 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 postition 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
appication has been.."
सज े स्पि है सक प्र थान पत् अन्तगात
ि र 125 ी०आर०पी० ी० पुनः योसजत सकय ज
 कत है। यह ाँ यह तथ्य मीचीन है सक प्र सथाय द्व र
पूिा में अपन प्र थान पत् अन्तगात ि र 125
 ी०आर०पी० ी० इ िता के थ ि प सलय गय
थ सक िह पुनः नय प्र थान पत् अन्तगात ि र 125
 ी०आर०पी० ी० योसजत कर कती है।
अतः उि तथ्यों एििं पररसस्थसतयों में सिपिी
क प्र थान पत् सनरस्त सकये ज ने योग्य है।
आदेि
सिपिी क प्र थान पत् क गज ० ी-13
सनरस्त सकय ज त है। पत् िली ि स्ते जि बद ि /
आपसत्त हेतु सदन िंक 19.09.2024 को पेि हो।"

9. Impeaching the order impugned
dated 31.08.2024, learned counsel for the
applicant relying upon the judgment passed
by the Hon'ble Apex Court in the case of
Sarguja Transport Service vs. State
Transport
Appellate
Tribunal,
M.P.,
Gwalior, and others; AIR 1987 SC 88,
stated that second application under Section
125 Cr.P.C. filed by the opposite party No.
2/Somya Saxena was not maintainable, as
such, the order dated 31.08.2024 is liable to
be interfered with by this Court.

10. Learned AGA supported the
impugned order dated 31.08.2024 on the
basis of "aims and objects" of the provision
i.e. Section 125 Cr.P.C.

11. Considered the aforesaid and
perused the record.

12. For coming to the conclusion
as to whether the impugned order dated
31.08.2024 is liable to be set-aside, this
Court is of the opinion to first take note of
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
the observations made by the Hon'ble Apex
Court on the "aims and objects" of Section
125 Cr.P.C.

13. In the case of Sanjeev Kapoor
vs. Chandana Kapoor and others reported
in (2020) 13 SCC 172, the Hon'ble Apex
Court while considering the applicability of
Section 362 Cr.P.C. in relation to the
proceedings/case instituted under Section
125 Cr.P.C., on the "aims and objects" of
Section 125 Cr.P.C., observed as under:-

"23. Before we proceed to
look into the legislative scheme of
Section 125 CrPC, we need to
notice few rules of interpretation of
statutes
when
the
court
is
concerned with the interpretation
of a social justice legislation.
Section 125 CrPC is a social
justice legislation which orders for
maintenance for wives, children
and parents. Maintenance of wives,
children
and
parents
is
a
continuous
obligation
enforced.
This
Court
had
occasion
to
consider
the
interpretation
of
Section
125
CrPC
in Badshah v. Urmila
Badshah
Godse [Badshah v. Urmila
Badshah Godse, (2014) 1 SCC 188
: (2014) 1 SCC (Civ) 51] . In paras
13.3 to 18, the following has been
laid down: (SCC pp. 196-98)
"13.3. Thirdly,
in
such
cases,
purposive
interpretation
needs to be given to the provisions
of Section 125 CrPC. While dealing
with the application of a destitute
wife or hapless children or parents
under this provision, the Court is
dealing
with
the
marginalised
sections of the society. The purpose
is to achieve "social justice" which
is
the
constitutional
vision,
enshrined in the Preamble of the
Constitution
of
India.
The
Preamble to the Constitution of
India clearly signals that we have
chosen the democratic path under
the rule of law to achieve the goal
of securing for all its citizens,
justice,
liberty,
equality
and
fraternity. It specifically highlights
achieving
their
social
justice.
Therefore, it becomes the bounden
duty of the courts to advance the
cause of the social justice. While
giving interpretation to a particular
provision, the court is supposed to
bridge the gap between the law and
society.
14. Of late, in this very
direction, it is emphasised that the
courts have to adopt different
approaches
in
"social
justice
adjudication", which is also known
as "social context adjudication" as
mere "adversarial approach" may
not be very appropriate. There are
number
of
social
justice
legislations
giving
special
protection
and
benefits
to
vulnerable groups in the society.
Prof. Madhava Menon describes it
eloquently:
'It is, therefore, respectfully
submitted that "social context
judging"
is
essentially
the
application
of
equality
jurisprudence
as
evolved
by
Parliament and the Supreme Court
in myriad situations presented
before
courts
where
unequal
parties are pitted in adversarial
proceedings and where courts are
called upon to dispense equal
justice. Apart from the socialeconomic inequalities accentuating
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1127
the disabilities of the poor in an
unequal
fight,
the
adversarial
process itself operates to the
disadvantage of the weaker party.
In such a situation, the Judge has
to be not only sensitive to the
inequalities of parties involved but
also positively inclined to the
weaker party if the imbalance were
not to result in miscarriage of
justice. This result is achieved by
what we call social context judging
or social justice adjudication. [
Keynote
address
on
"Legal
Education
in
Social
Context"
delivered
at
National
Law
University, Jodhpur on 12-10-2005,
available on last accessed 25-122013.] '
15.
The
provision
of
maintenance would definitely fall in
this
category
which
aims
at
empowering
the
destitute
and
achieving social justice or equality
and dignity of the individual. While
dealing with cases under this
provision, drift in the approach
from "adversarial" litigation to
social context adjudication is the
need of the hour.
16.
The
law
regulates
relationships between people. It
prescribes patterns of behaviour. It
reflects the values of society. The
role of the court is to understand
the purpose of law in society and to
help the law achieve its purpose.
But the law of a society is a living
organism. It is based on a given
factual and social reality that is
constantly changing. Sometimes
change in law precedes societal
change and is even intended to
stimulate it. In most cases, however,
a change in law is the result of a
change in social reality. Indeed,
when social reality changes, the
law must change too. Just as
change in social reality is the law
of life, responsiveness to change in
social reality is the life of the law. It
can be said that the history of law
is the history of adapting the law to
society's changing needs. In both
constitutional
and
statutory
interpretation,
the
court
is
supposed to exercise discretion in
determining the proper relationship
between
the
subjective
and
objective purposes of the law.
17. Cardozo acknowledges
in his classic [ Benjamin N.
Cardozo, The Nature of Judicial
Process (Yale
University
Press,
New Haven, 1921).]
'...
no
system
of jus
scriptum has been able to escape
the need of it.'

and he elaborates:

'It is true that codes and
statutes do not render the Judge
superfluous,
nor
his
work
perfunctory and mechanical. There
are gaps to be filled. ... There are
hardships
and
wrongs
to
be
mitigated
if
not
avoided.
Interpretation is often spoken of as
if it were nothing but the search
and the discovery of a meaning
which, however obscure and latent,
had
nonetheless
a
real
and
ascertainable pre-existence in the
legislator's mind. The process is,
indeed, that at times, but it is often
something more. The ascertainment
of intention may be the least of a
Judge's
troubles
in
ascribing
meaning to a statute. ...
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
Says Gray in his lectures [
John Chipman Gray, The Nature
and Sources of the Law.] :
"The
fact
is
that
the
difficulties
of
so-called
interpretation
arise
when
the
legislature has had no meaning at
all; when the question which is
raised
on
the
statute
never
occurred to it; when what the
Judges have to do is, not to
determine that the legislature did
mean on a point which was present
to its mind, but to guess what it
would have intended on a point not
present to its mind, if the point had
been present."'
18. The
court
as
the
interpreter of law is supposed to
supply
omissions,
correct
uncertainties,
and
harmonise
results with justice through a
method of free decision - libre
recherché
scientifique i.e.
"free
scientific research". We are of the
opinion that there is a nonrebuttable presumption that the
legislature
while
making
a
provision like Section 125 CrPC, to
fulfil its constitutional duty in good
faith, had always intended to give
relief to the woman becoming
"wife" under such circumstances.
This
approach
is
particularly
needed while deciding the issues
relating to gender justice. We
already
have
examples
of
exemplary efforts in this regard.
Journey from Shah Bano [Mohd.
Ahmed Khan v. Shah Bano Begum,
(1985) 2 SCC 556 : 1985 SCC
(Cri)
245]
to Shabana
Bano [Shabana
Bano v. Imran
Khan, (2010) 1 SCC 666 : (2010) 1
SCC (Civ) 216 : (2010) 1 SCC
(Cri)
873]
guaranteeing
maintenance
rights
to
Muslim
women is a classical example.
24. The
closer
look
at
Section 125 CrPC itself indicates
that
the
court
after
passing
judgment or final order in the
proceedings under Section 125
CrPC does not become functus
officio. The section itself contains
express provisions where order
passed under Section 125 CrPC
can be cancelled or altered which
is noticeable from Sections 125(1),
125(5) and 127 CrPC, which are to
the following effect:
"125. Order
for
maintenance of wives, children
and parents.-(1) If any person
having sufficient means neglects or
refuses to maintain-
(a) his wife, unable to
maintain herself, or
(b)
his
legitimate
or
illegitimate minor child, whether
married or not, unable to maintain
itself, or
(c)
his
legitimate
or
illegitimate child (not being a
married
daughter)
who
has
attained majority, where such child
is, by reason of any physical or
mental
abnormality
or
injury
unable to maintain itself, or
(d) his father or mother,
unable to maintain himself or
herself,
a Magistrate of the First
Class may, upon proof of such
neglect or refusal, order such
person
to
make
a
monthly
allowance for the maintenance of
his wife or such child, father or
mother, at such monthly rate, as
such Magistrate thinks fit, and to
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1129
pay the same to such person as the
Magistrate may from time to time
direct:
Provided
that
the
Magistrate may order the father of
a minor female child referred to in
clause (b) to make such allowance,
until she attains her majority, if the
Magistrate is satisfied that the
husband of such minor female
child, if married, is not possessed
of sufficient means:
Provided further that the
Magistrate
may,
during
the
pendency
of
the
proceeding
regarding monthly allowance for
the maintenance under this subsection, order such person to make
a monthly allowance for the interim
maintenance of his wife or such
child, father or mother, and the
expenses of such proceeding which
the
Magistrate
considers
reasonable, and to pay the same to
such person as the Magistrate may
from time to time direct:
Provided
also
that
an
application
for
the
monthly
allowance
for
the
interim
maintenance and expenses for
proceeding
under
the
second
proviso shall, as far as possible, be
disposed of within sixty days from
the date of the service of notice of
the application to such person.
Explanation.-For
the
purposes of this Chapter-
(a)
"minor"
means
a
person who, under the provisions of
the Indian Majority Act, 1875 (9 of
1875) is deemed not to have
attained his majority;
(b)
"wife"
includes
a
woman who has been divorced by,
or has obtained a divorce from, her
husband and has not remarried.
***
(5) On proof that any wife
in whose favour an order has been
made under this section is living in
adultery, or that without sufficient
reason she refuses to live with her
husband, or that they are living
separately by mutual consent, the
Magistrate shall cancel the order.
***
127. Alteration
in
allowance.-(1) On proof of a
change in the circumstances of any
person, receiving, under Section
125 a monthly allowance for the
maintenance
or
interim
maintenance, or ordered under the
same section to pay a monthly
allowance for the maintenance, or
interim maintenance, to his wife,
child, father or mother, as the case
may be, the Magistrate may make
such alteration, as he thinks fit, in
the allowance for the maintenance
or the interim maintenance, as the
case may be.
(2) Where it appears to the
Magistrate that, in consequence of
any decision of a competent civil
court, any order made under
Section 125 should be cancelled or
varied, he shall cancel the order or,
as the case may be, vary the same
accordingly.
(3) Where any order has
been made under Section 125 in
favour of a woman who has been
divorced by, or has obtained a
divorce from, her husband, the
Magistrate shall, if he is satisfied
that-
(a) the woman has, after
the date of such divorce, remarried,
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
cancel such order as from the date
of her remarriage.
(b) the woman has been
divorced by her husband and that
she has received, whether before or
after the date of the said order, the
whole of the sum which, under any
customary
or
personal
law
applicable to the parties, was
payable on such divorce, cancel
such order-
(i) in the case where such
sum was paid before such order,
from the date on which such order
was made,
(ii) in any other case, from
the date of expiry of the period, if
any, for which maintenance has
been actually paid by the husband
to the woman;
(c) the woman has obtained
a divorce from her husband and
that
she
had
voluntarily
surrendered
her
rights
to
maintenance
or
interim
maintenance, as the case may be
after her divorce, cancel the order
from the date thereof.
(4) At the time of making
any decree for the recovery of any
maintenance or dowry by any
person,
to
whom
monthly
allowance for the maintenance and
interim maintenance or any of them
has been ordered to be paid under
Section 125, the civil court shall
take into account that sum which
has been paid to, or recovered by,
such person as monthly allowance
for the maintenance and interim
maintenance or any of them, as the
case may be, in pursuance of the
said order."
25. In Section 125 CrPC
the expression used is "as the
Magistrate may from time to time
direct". The use of the expression
"from time to time" has purpose
and
meaning.
It
clearly
contemplates that with regard to
the order passed under Section
125(1) CrPC, the Magistrate may
have to exercise jurisdiction from
time to time. Use of the expression
"from time to time" is in exercise
of jurisdiction of the Magistrate in
a particular case. Advanced Law
Lexicon by P. Ramanatha Aiyar,
3rd Edn. defines "time to time" as
follows:
"Time to time. As occasion
arises."
26. The above legislative
scheme
indicates
that
the
Magistrate
does
not
become
functus officio after passing an
order under Section 125 CrPC, as
and when the occasion arises the
Magistrate
exercises
the
jurisdiction from time to time. By
Section
125(5)
CrPC,
the
Magistrate is expressly empowered
to cancel an order passed under
Section 125(1) CrPC on fulfilment
of certain conditions.
27. Section 127 CrPC also
discloses the legislative intendment
where the Magistrate is empowered
to alter an order passed under
Section 125 CrPC. Sub-section (2)
of
Section
127
CrPC
also
empowers the Magistrate to cancel
or vary an order under Section 125.
The
legislative
scheme
as
delineated by Sections 125 and 127
CrPC as noted above clearly
enumerated the circumstances and
incidents provided in the Code of
Criminal Procedure where the
court passing a judgment or final
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1131
order disposing of the case can
alter or review the same. The
embargo as contained in Section
362 is, thus, clearly relaxed in the
proceedings under Section 125
CrPC as indicated above.
28. The submissions which
have been pressed by the learned
counsel for the appellant were
founded only on embargo of
Section 362 and when embargo of
Section 362 is expressly relaxed in
the proceedings under Section 125
CrPC, we are not persuaded to
accept the submission of the
counsel for the appellant that the
Family Court was not entitled to set
aside and cancel its order dated 65-2017
in
the
facts
and
circumstances of the present case."

14. Following paragraphs of the
judgment passed by the Hon'ble Apex
Court in the case of Anju Garg and another
vs. Deepak Kumar Garg reported in 2022
SCC OnLine SC 1314 would also be
relevant on the "aims and objects" of the
provision i.e. Section 125 Cr.P.C.

"9. At the outset, it may be
noted that Section 125 of Cr.P.C.
was conceived to ameliorate the
agony,
anguish
and
financial
suffering of a woman who is
required to leave the matrimonial
home,
so
that
some
suitable
arrangements could be made to
enable her to sustain herself and
the children, as observed by this
Court
in Bhuwan
Mohan
Singh v. Meena (2015) 6 SCC 353.
This Court in the said case, after
referring to the earlier decisions,
has reiterated the principle of law
as to how the proceedings under
Section 125 Cr.P.C have to be dealt
with by the Court. It held as under:
"In Dukhtar
Jahan v. Mohd. Farooq [(1987) 1
SCC 624 : 1987 SCC (Cri) 237]
the Court opined that : (SCC p.
631, para 16)
16. "... Proceedings under
Section 125 [of the Code], it must
be remembered, are of a summary
nature and are intended to enable
destitute wives and children, the
latter whether they are legitimate
or illegitimate, to get maintenance
in a speedy manner."
8. A three-Judge Bench
in Vimala
(K.) v. Veeraswamy
(K.) [(1991) 2 SCC 375 : 1991
SCC (Cri) 442], while discussing
about the basic purpose under
Section 125 of the Code, opined
that : (SCC p. 378, para 3)
3. "Section 125 of the
Code of Criminal Procedure 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."
9. A two-Judge Bench
in Kirtikant D. Vadodaria v. State
of
Gujarat [(1996)
4
SCC
479 : 1996 SCC (Cri) 762], while
adverting to the dominant purpose
behind Section 125 of the Code,
ruled that : (SCC p. 489, para 15)
15. "... While dealing with
the ambit and scope of the
provision contained in Section 125
of the Code, it has to be borne in
mind that the dominant and
primary object is to give social
justice to the woman, child and
infirm parents, etc. and to prevent
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
destitution
and
vagrancy
by
compelling those who can support
those who are unable to support
themselves but have a moral claim
for support. The provisions in
Section 125 provide a speedy
remedy to those women, children
and destitute parents who are in
distress. The provisions in Section
125 are intended to achieve this
special purpose. The dominant
purpose behind the benevolent
provisions contained in Section
125 clearly is that the wife, child
and parents should not be left in a
helpless
state
of
distress,
destitution and starvation."
10.
In Chaturbhuj v. Sita
Bai [(2008) 2 SCC 316 : (2008) 1
SCC (Civ) 547 : (2008) 1 SCC
(Cri) 356], reiterating the legal
position the Court held : (SCC p.
320, para 6)
6. "... Section 125 CrPC is
a measure of social justice and is
specially enacted to protect women
and children and as noted by this
Court in Capt. Ramesh Chander
Kaushal v. Veena Kaushal [(1978)
4 SCC 70 : 1978 SCC (Cri) 508]
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 : 2005 SCC (Cri)
787]."
11.Recently
in
Nagendrappa
Natikar
v.
Neelamma
[(2014)
14
SCC
452 : (2015)
1
SCC
(Cri)
407 : (2015) 1 SCC (Civ) 346], it
has been stated that it 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".
10. This Court had made
the above observations as the
Court felt that the Family Court in
the said case had conducted the
proceedings without being alive to
the objects and reasons, and the
spirit of the provisions under
Section 125 of the Code. Such an
impression has also been gathered
by this Court in the case on hand.
The Family Court had disregarded
the basic canon of law that it is the
sacrosanct duty of the husband to
provide financial support to the
wife and to the minor children. The
husband is required to earn money
even by physical labour, if he is an
able-bodied, and could not avoid
his obligation, except on the legally
permissible grounds mentioned in
the statute. In Chaturbhuj v. Sita
Bai (2008) 2 SCC 316, it has been
held that the object of maintenance
proceedings is not to punish a
person for his past neglect, but to
prevent vagrancy and destitution of
a deserted wife, by providing her
food, clothing, and shelter by a
speedy remedy. As settled by this
Court, Section 125 Cr.P.C. is a
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1133
measure of social justice and is
specially enacted to protect women
and children. It also falls within the
Constitutional sweep of Article
15(3), reinforced by Article 39 of
the Constitution of India."

15. Regarding the issue involved
in the instant case, this Court feels it
appropriate to take note of the principle of
"Res Judicata", as expressed by the Hon'ble
Apex Court and also the judgments
wherein it has been held that second
petition/application claiming maintenance
would be maintainable.

16. On the principle of "Res
Judicata", the Hon'ble Apex Court in its
latest judgment passed in the case of Prem
Kishore & Others Vs. Brahm Prakash &
Others reported in 2023 SCC OnLine SC
356, in paragraphs 37 and 38 held as
under:-

"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:-
(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
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. In the case of Nagendrappa
Natikar v. Neelamma reported in (2014) 14
SCC 452, the Hon'ble Apex observed as
under:-

"5. We notice, while the
application under Section 127
CrPC was pending, the respondent
wife filed OS No. 10 of 2005 before
the Family Court, Gulbarga under
Section 18 of the Act claiming
maintenance at the rate of Rs 2000
per month. The claim was resisted by
the petitioner husband contending
that, in view of the compromise
reached at between the parties in
Miscellaneous Case No. 234 of 1992
filed under Section 125 CrPC, the
respondent could not claim any
monthly maintenance and hence the
suit filed under Section 18 of the Act
was not maintainable. 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 CrPC would not
be a bar in entertaining a suit under
Section 18 of the Act.
6. The suit was then finally
heard on 30-9-2010 and the Family
Court decreed the suit holding that
the respondent is entitled to a
monthly maintenance of Rs 2000
per month from the defendant
husband from the date of the filing
of the suit.
7. Aggrieved by the said
order, the petitioner took up the
matter before the High Court by
filing an appeal, being MFA No.
31979
of
2010,
which
was
dismissed by the High Court by its
judgment
dated
28-3-2011
[Nagendrappa
Natikar
v.
Neelamma, MFA No. 31979 of
2010,
decided
on
28-3-2011
(KAR)] , against which this SLP
has been preferred.
8. Shri Raja Venkatappa
Naik, learned counsel appearing
for
the
petitioner
husband
submitted that suit filed under
Section 18 of the Act is not
maintainable in view of the order
dated 3-9-1994, accepting
the
consent terms and ordering a
consolidated
amount
towards
maintenance under Section 125
CrPC.
9. We are in complete
agreement with the reasoning of the
Family Court and confirmed by the
High Court that the suit under
Section 18 of the Act is perfectly
maintainable,
in
spite
of
the
compromise reached at between the
parties under Order 23 Rule 3 CPC
and accepted by the Court in its
order dated 3-9-1994.
10. Section 125 CrPC 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
9 All. Shankh Saxena Vs. State of U.P. & Anr.
1135
full and final determination of the
status and personal rights of the
parties, which is in the nature of a
civil
proceeding,
though
are
governed by the provisions of CrPC
and the order made under Section
125 CrPC is tentative and is
subject to final determination of the
rights in a civil court.
11. 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 proceeding under Section 125
CrPC is summary in nature and
intended to provide a speedy
remedy to the wife and any order
passed under Section 125 CrPC by
compromise or otherwise cannot
foreclose the remedy available to a
wife under Section 18(2) of the
Act."

18. In the judgment dated
23.05.2023 passed in Criminal Misc. Writ
Petition No. 22529 of 2008 (Shyam
Bahadur Singh vs. State of U.P. and
another), this Court, while dealing with the
issue
related
to
filing
of
second
petition/application under Section 125
Cr.P.C., observed as under:-

"4. The main crux of the
argument of the petitioner is that
the
respondent's
wife
never
challenged
the
order
of
the
revisional court by which the
earlier order passed by the trial
court rejecting the first application
under Section 125 Cr.P.C. was
affirmed,
therefore,
the
order
passed against the wife became
final and therefore, the matter
cannot be agitated again by filing
another application under Section
125 Cr.P.C.; it is argued that the
entire
proceeding
subsequently
initiated by respondent no. 2 is
barred by principle of constructive
res-judicata
and
hit
by
the
provisions of Constitution of India,
therefore, it is liable to be quashed;
it is further argued that the
subsequent
orders
granting
maintenance is passed ignoring the
factual and legal positions; the
learned trial court as well as the
revisional court passed an illegal
order, therefore the orders cannot
be sustained.
xxx xxx xxx xxx
10.