DEOKI NANDAN, J. - (1.) THE second opposite party Smt. Vimilesh Kumari is the wife of the applicant in this appli­cation under Section 482 of the Code of Criminal Procedure. The prayer made by the applicant is that proceedings in the court of the sub-Divisional Magistrate, Sadar, Agra and the order dated 28th October, 1976, passed therein may be quashed.
(2.) IT appears, from the reading of the said order which is annexure 'A' to the affidavit of the applicant filed in support of the application, that the sub-Divisional Magistrate had by an order dated 6th June, 1973, ordered payment of mainte­nance at the rate of Rs. 100/- per month by the applicant husband to the opposite party-wife from the date of the original application in that court. That order appears to have been passed under Section 488 of the Code of Criminal Procedure, 1898. The respondents' revision against the same was dismissed whereupon he applied to this court for revision and by an interim order dated 12th September, 1974, this court suspen­ded the payment of maintenance ordered by the learned Magistrate provided the applicant husband paid 56 percent of the maintenance allowance at the close of each month and also paid the entire arrears upto the date of the interim order. In case of default, the stay order was to stand automatically vacated. The applicant not having complied with the conditions of the interim order, the second opposite party-wife applied to the sub-Divisional Magistrate on 1st January, 1975, for recovery of the sum of Rs. 6,340/- as the arrears of main­tenance for the period 28th August, 1969 to the 10th December, 1974 and a warrant for recovery of that amount Was issued by the Magistrate on 3rd January, 197x The warrant was return­ed by the police with the report dated 21st January, 1975, asking for the permanent address of the applicant, where­upon the second opposite party made another application dated 2nd March, 1975, for a fresh warrant of recovery which was also returned with the police report that the applicant who is an advocate was living in house no. 78 Ashok Nagar, but had left that place along with his new wife Smt. Duo Kumar and was living in the house of Sri Chandra Datta Sharma in plot no. D-112, house no. 529, Lal Kothi, Babu Nagar, P. S. Adarsh Nagar, Jaipur. On this report, the second opposite party made an application on 10th April, 1975, for recovery by the arrest of the applicant. On this, the applicant filed an objection in the court of sub-Divisional Magistrate on 16th April, 1975, to the effect that court had no jurisdiction to take proceed­ing for recovery under the code of Criminal Procedure, 1973. That objec­tion was rejected on 21st April, 1973, and it was held that the court had juris­diction to proceed with the recovery. On this, the applicant filed an application dated 24th April, 1973, praying for stay of recovery proceeding and by another application, he alleged that the second opposite party was leading a life of adul­tery. On this application, the court of sub-Divisional Magistrate stayed the recovery proceedings by an order dated 18th October, 1975, and directed that evidence may be led in support of the allegation that the second opposite party was living in adultery. The second opposite party then applied on 3rd December, 1975, in the court of the sub-Divisional Magistrates for proceeding with the recovery on the ground that the applicant had not complied with the orders of this court. The impugned order dated 18th October, 1976, further shows that the first question which arose before the learned Magistrate was about the date from which the cancellation of the maintenance order on the ground that the wife was living in adultery could be deemed effective in case it was so cancelled and on this question, the attention of the learned Magistrate having been drawn to ruling reported in Smt. Kalyani Devi v. Nirmal Kumar Panda, (1957 Cr. L. J. 177), he found that the maintenance allowance was payable upto the date on which the main­tenance order is cancelled on the ground that the wife is living in adultery. The learned Magistrate held that in view of the said ruling, there was no justification for staying the recovery proceeding till such time as the maintenance order was actually cancelled. He accordingly ordered that the recovery should proceed but at the same time permitted the parties to lead evidence on the question whether the wife was living in adultery. The aforesaid order of the learned Magis­trate was upheld by the court of sessions Judge, Agra, by an order dated 25th February, 1977, dismissing the applicants' revision there from. The applicant has in his application relied on certain orders passed in bet­ween by the court of the Sub-Divisional Magistrate for regulating the said pro­ceedings. The second opposite party has, on the other hand, contended in her counter affidavit that the order passed by the Sub-Divisional Magistrate on 21st April, 1975, rejecting the applicants' contention that court had no jurisdiction to proceed with the recovery after the coming into force of the Code of Crimi­nal Procedure, 1973, had been allowed by the applicant to have become final and that, therefore, it is not open to the applicant to now contend in the course of very same proceeding that the court of Sub-Divisional Magistrate has no jurisdiction to proceed with the recovery.
(3.) THE question of jurisdiction, however, goes to the root of the matter and whe­ther the question about Sub-Divisional Magistrate's jurisdiction could be raked up before him again, the matter having been brought before this court, it appears to me to be the duty of this court to pro­hibit the taking of further proceedings in the court of Sub-Divisional Magis­trate for. recovery of the main­tenance under its order dated 6th January, 1973, under Section 488 of the Code of Criminal Procedure, 1898, in case it is found that under the Code of Criminal Procedure, 1973, the jurisdiction to proceed with the recovery, vests in the court of the Judicial Magistrate con­cerned and is no longer exercisable by the Sub-Divisional Magistrate who is an Executive Magistrate.;