Mohd. Irfan v. Nisharia Begum : 2007 (3) JCC 2389 : 2008 (1) DMC 300 : 2007 (3) LRC 462 (Del)
Section 125-Maintenance-Claim for- Parties had divorced as per a talaknama duly signed by both Parties-Petitioner stated that professing Islamic faith till husband did not give the requisite consent as required by Muslim Woman's Protection of Rights in Divorce Act, respondent could not lay a claim to any maintenance under' s 125. CrPC-Respondent did not file a rejoinder to the reply filed by the petitioner-Dismissal of application has admittedly not been challenged till date and it has attained finality-Respondent filed another application praying interim maintenance-Sessions Judge held that till it was established that matrimonial bond between the parties had snapped, application for interim maintenance was maintainable-Petition against-While earlier order did not adjudicate issue on merits, said order was the result of respondent not filling a replication to the reply filed by the petitioner to her application seeking interim maintenance and to that extent it cannot be said that said order would operate as res judicata-While declining interim maintenance, Magistrate rightly held that matter has to be tried or for said reason notified maintenance is set aside.
Held : Whether interim maintenance could be awarded? Is the question which needs answer.
While it may be true that order dated 2.11.1996 did not adjudicate the issue on merits as noted above, said order was the result of respondent not filing a replication to the reply filed by the petitioner to her application seeking interim maintenance and to that extent it cannot be said that the said order would operate as res judicata.
Reason being that sine qua non for a judicial adjudication to operate as res judicata is a decision on merits. But, at the same time, impact of the order dated 2.11.1996 cannot be nullified without a further inquiry.
The petitioner has a prima facie finding in his favor as noted in the same order.
Thus, at the second stage proceedings till evidence was led, question of awarding any maintenance to the respondent does not arise.
Indeed, the learned Metropolitan Magistrate, vide her order dated 11.8.2004 while declining interim maintenance has rightly held that matter has to be tried and for said reason notified a date for recording evidence.
Thus, impugned order cannot be sustained. Petition stands disposed of quashing the impugned order.