V. P. Mathur. J. - (1.) THIS revision is directed against the judgment and order passed by the Judicial Magistrate of Agra on 23-11-1983, whereby he has dismissed the objection raised by the applicant K.C. Saxena-husband of Vimlesh Kumari.
(2.) IT appears that proceedings under the old provisions of section 488 CrPC (now section 125 CrPC) for maintenance were started at the instance of Vimlesh Kumari. She was granted an amount of maintenance by the Court below and then she moved an application for realisation of the same. Against this application objections purporting to be under section 125 (4) CrPC were preferred by the husband K. C. Saxena. He also filed a separate petition purporting to be under section 125 (5) CrPC for cancellation of the order of the learned Magistrate granting maintenance to her on the ground that she was living in adultery. The learned Magistrate, vide, his order dated 23-11-1983 dismissed both these objections under section 125 (4) and under section 125 (5) CrPC holding that the husband had earlier filed a suit for dissolution of the marriage on the ground that the wife was living in adultery and this suit had been dismissed for default of the parties and that dismissal will operate against the present petitions also. Provisions of section 11 CPC do not apply in terms to criminal proceedings but the principles are always applicable and the basic principle is that there should be two cases between the same parties raising the same questions and they should be heard and finally decided. A case dismissed for default of the parties is neither heard nor finally decided and hence even the principles of res-judicata enunciated in section 11 CPC will not apply and the learned Magistrate was perfectly wrong in disposing of both the objections under sections 125 (4) and 125 (5) CrPC merely on the ground of dismissal of the petition for dissolution of the marriage on the ground of adultery. That plea did not end by the dismissal of the suit which was in default of the parties and it can be taken in subsequent proceedings till so long as it is not finally disposed of on merits.
(3.) THE revision is, therefore, allowed. THE order passed by the learned Magistrate on 23-11-83 is set aside and the case is remanded back to him with a direction that he will decide both the petitions under section 125 (4) and under section 125 (5) of the Code of Criminal Procedure moved by the husband K. C. Saxena on merits after taking evidence of the parties. THE stay order granted shall continue till disposal of these petitions. Revision allowed.;