18 May 2020


Judgments

High Court of Bombay

Bhagwat Pitambar Borse Vs. Anusayabai Bhagwat Borse and Ors.

MANU/MH/0209/2018

08.02.2018

Criminal

Once the dispute is adjudicated by Competent Courts, it is not necessary for Petitioner to prove same thing again and again in different proceeding

The Petitioner-husband had filed Hindu Marriage Petition for dissolution of marriage. It was decided on 24th April, 2006 and the divorce is granted. The Petitioner, then filed Misc. Application under Section 125(5) and Section 127 of the Code of Criminal Procedure,1973 (CrPC) for cancellation of the maintenance order on the ground that, divorce decree is passed against the Respondent wife on the ground of adultery and the marriage is dissolved. The learned Judicial Magistrate rejected the application. The Petitioner preferred Criminal Revision Application. The learned Additional Sessions Judge, dismissed the revision and confirmed the order passed by the learned Judicial magistrate. Hence present criminal writ petition.

As per Section 125(4) of CrPC, no Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Further, according to Section 125(4) of CrPC, 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 maintenance order.

In the present case, admittedly divorce in favour of the Petitioner husband was granted on the ground that, Respondent wife was living in adultery. It is also undisputed that, the order of the civil Court granting divorce on the ground of adultery has attained finality. It is not necessary for the Petitioner to lead evidence again in the proceeding before the learned Magistrate to prove the adultery on the part of Respondent wife. Once the dispute between the parties in relation to a particular issue is already adjudicated by the competent Courts, it is not necessary for the Petitioner to prove the same thing again and again in different proceeding, particularly in criminal proceedings.

Once the Petitioner husband has established that the Respondent wife was living in adultery and on that ground divorce has been granted to the Petitioner, in such circumstance, it is not necessary for the present Petitioner husband to prove the same thing again in different proceeding. In view of the concurrent findings, it is established that, the Respondent was leading adulterous life.

Learned Judicial Magistrate, has wrongly rejected Miscellaneous Application, filed by the present Petitioner under Section 125(5) and Section 127 of the CrPC for cancellation of maintenance as well as the learned Additional Sessions Judge, has wrongly dismissed Criminal Revision Application. Therefore both the orders are set aside.

Tags : Maintenance Cancellation Grant

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