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Allahabad High Court sets aside order by Principal judge of Family Court Sonbhadra

The Allahabad High Court while setting aside the order passed by the Principal Judge, Family Court, Sonbhadra, observed that even though fresh application filed by the applicant under Section 125 Cr.P.C filed for the same relief/cause of action but the same is maintainable as the principle of res judicata will not apply therein.

A Single Bench of Justice Shiv Shanker Prasad passed this order while hearing an application under section 482 filed by Shabana Bano.

The application under Section 482 Cr.P.C has been filed on behalf of the applicant to quash the order dated 20th May, 2022 passed by the Principal Judge, Family Court, Sonbhadra, in Criminal Case under Section 125 Cr.P.C, Police Station-Dudhi, District-Sonbhadra, whereby the application made by the applicant under Section 125 Cr.P.C has been rejected.

The facts 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, the applicant came to her matrimonial house but after a few days of her marriage, the husband (opposite party no 2) and his family members again demanded Rs 20 lacs from the 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 (Shabana Bano Versus Ali Raza) Under Section 125 Cr.P.C for maintaining her and her children but the said application was rejected by the 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, which has also been rejected/ dismissed by the 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.

This application was 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.

Submission of the 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 the same ground has been finally decided/rejected. The 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 the applicant being an 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 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.

On the other-hand, A.G.A controverts the submissions made by the 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.

A.G.A submitted 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 applicant has no merit and is liable to be dismissed.

The Court observed that,

In view of the aforesaid, the 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.

In view of the aforesaid, it is apparent that the principle of res judicata will only be applicable in second case/application in which the matter directly and substantially in issue has been directly and substantially in issue in the former applications (under Sections 125 and 126 (2) Cr.P.C) between the same parties i.e Shabana Bano and Ali Raza under which the applicant claimed maintenance allowance, in a Court competent to try such subsequent application/case in which such claim has been subsequently raised, and has been heard and finally decided by such Court, but if earlier case has not been decided finally or without merits or affording opportunity of hearing to the applicant, second case/application for the same relief i.e maintenance allowance will be maintainable and the principle of res judicata will not apply.

It is an admitted position that the earlier two cases filed by the applicant under Sections 125 Cr.P.C and 126 (2) Cr.P.C being Criminal Misc Application respectively have been rejected for want of prosecution and the same have not been finally decided after affording opportunity of hearing to the applicant.

“As such, the Court is of the firm opinion that even though a fresh application filed by the applicant under Section 125 Cr.P.C being Criminal Misc Application filed for the same relief/cause of action but the same is maintainable as the principle of res judicata will not apply therein.

Consequently, the judgement and order dated 20th May, 2022 passed by the Principal Judge, Family Court, Sonbhadra, in Criminal Case under Section 125 Cr.P.C, Police Station-Dudhi, District-Sonbhadra cannot be legally sustained and hereby set aside”, the Court further observed while allowing the application.

The Court directed the Principal Judge, Family Court, Sonbhadra to consider and decide the same afresh on merits, in accordance with law, by means of a reasoned and speaking order, after affording opportunity of hearing to the parties concerned, preferably within a period of six months from the date of production of a certified copy of this order, without granting any unnecessary adjournment to either of the parties, if possible on day to day basis.

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