In CRL.REV.P. 161/2018-DEL HC- Whenever party claims change in circumstance after order granting maintenance has been passed, appropriate recourse would be petition u/s 127 CrPC and not fresh petition u/s 125, rules Delhi HC
Justice Swarana Kanta Sharma [18-08-2022]

Read Order: SUNITA & ANR v. VIJAY PAL @ MOHD. SABIR & ANR 

Mansimran Kaur

New Delhi, August 20, 2022: Once the petition has been adjudicated under Section 125 Cr.P.C. by a Court of competent jurisdiction on merits, a subsequent petition cannot be preferred which arises from the same dispute having similar situations and grounds as previously adjudicated in the earlier petition filed under Section 125 Cr.P.C, the Delhi High Court has observed.

By ruling that a petition under Section 125 Cr.P.C. will be covered by the principle of res judicata due to its universal applicability, as proceedings under Section 125 Cr.P.C. are quasi-criminal in nature, the Single Judge Bench of Justice Swarna Kanta Sharma dismissed the instant petition against the impugned order passed by the Family Court  

Facts in brief for adjudication of the present petition were that the marriage between the first petitioner and the first respondent was solemnized in the year 1990 and the parties last resided together up to January, 1996.   Since the time of separation, the parties were involved in multiple litigations. Out of which one such case was filed under Section 125 Cr.P.C.

The petitioner by means of the second petition under Section 125 Cr.P.C. prayed to direct the respondent to pay a sum of Rs. 20,000 per month in favour of the first petitioner  and also to pay a sum of Rs. 10,000 per month in favour of the second petitioner.  Further by means of the petition the petitioners prayed for the Court to award Rs. 55,000/- towards litigation expenses in favour of the petitioners. However, the said case was dismissed on the ground of res judicata through  the impugned order on the ground that prior to the filing of the said petition, the petitioner along with her two children had filed petition under Section 125 Cr.P.C. before the court of ACJM which decided and each of the three petitioners were granted a sum of Rs. 500 per month as maintenance.

The Court noted that Section Section 125 Cr.P.C. is to ensure financial support to the estranged wife. Further, the objective behind granting maintenance is not to punish a person but rather support the relations who have a moral right to be supported. The most important precondition for Section 125 Cr.P.C. to become operative is the condition that the wife is unable to maintain herself and the husband has neglected or refused to maintain his wife, the Court noted. 

Observing that an adjudicated order under Section 125 Cr.P.C. is a precondition for making an application under Section 127 Cr.P.C., the Bench said, “Therefore, whenever a party claims a change in circumstance after an order granting maintenance has been passed under Section 125 Cr.P.C., the appropriate recourse would be a petition under Section 127 Cr.P.C. and not a fresh petition under Section 125 Cr.P.C.”

Coming onto the facts of the present case, the Court noted that the Family Court opined that the present matter was  hit by the principle of res judicata and the remedy was  available under Section 127 Cr.P.C. once the order has been passed under Section 125 Cr.P.C. granting maintenance. In addition to the same, the Court also noted that a petition under Section 125 Cr.P.C. will be covered by the principle of res judicata due to its universal applicability, as proceedings under Section 125 Cr.P.C. are Quasi-Criminal in nature. 

Further Section 127 of the Cr.P.C. was taken into account. In view of the same, the Court observed that in order to avoid re-adjudication of the same issue, the legislature enacted Section 127 Cr.P.C. to deal with change in circumstances after passing of an order granting maintenance.  The court must be satisfied that there has been a change in the circumstances of either the husband or of the wife, based upon the fate of a petition under Section 127 Cr.P.C. shall be determined, the Court further observed. 

In the present case, it was  not undisputed that a petition preferred by the petitioner under Section 125 Cr.P.C. was conclusively decided . Thus, when a subsequent petition was filed, it was to be treated as a second petition for a previously adjudicated issue, held the Bench. Thus, this Court did not find merit in the submissions made by Counsel for the petitioner, that for claiming maintenance every month, a separate application could be filed every month.

In view of the same, the Court noted that the appropriate course of action, as rightly pointed out by the Trial court, is to initiate proceedings under Section 127 Cr.P.C. for the alteration of the amount subject to the satisfaction of the conditions as mentioned above.  The intent of enacting Section 127 Cr.P.C. was to specifically focus on the aspect of change in circumstances, the Court further remarked. 

 The matter in question in the present case was conclusively determined on merit. For seeking any further relief in case of change in circumstances, the petitioner should take recourse  under Section 127 Cr.P.C, the Court noted. Thus, in light of the observations stated above, the revision petition was dismissed.