K. S. LODHA, J. - (1.) THIS revision has been filed by Shri Jagdish Chandra against the order dated 4. 8. 84 passed by the learned Chief Judl. Magistrate, Sirohi rejecting his objections to the notice issued to him u/s 125 (3) Cr. P. C. for the enforcement of the maintenance awarded to the non-petitioner for a period from 5. 4. 83 to 5. 9 83.
(2.) TWO separate applications were filed by Smt. Hemlata for the recovery of the maintenance awarded to her u/s l25 (l)Cr. P. C. The first was for the period 5. 4. 83 to 5. 5. 83 and the second for the period 6. 5. 83 to 5. 9. 83. Notices of these applications were issued to the present petitioner to file his replies to both of them. The replies were identical and raised three grounds about sufficient cause for not complying with the order u/s 125 (1) Cr. P. C. The first ground was that the present petitioner was ready and willing to maintain Smt. Hemlata if she came and stayed with him, (ii) that the parties were living separate by mutual consent; and (iii) that the non-petitioner Smt. Hemlata was getting a salary of Rs. 600/- p. m. as she was serving as a teacher. The non-petitioner Smt. Hemlata denied all these grounds. The learned Magistrate after hearing the parties held that the contention of the present petitioner that he was ready and willing to keep the non-petitioner and to maintain her if she stayed with him, is barred by the principle of res judicata as in the original proceedings u/s 125 (1) Cr. P. C. it has already been found that the non-petitioner Smt. Hemlata had sufficient cause for not living with her husband as husband has treated her with cruelty and, therefore, this ground cannot be reagitated. So far as the second ground was concerned, the learned Magistrate does not appear to have given any finding is this respect and regarding third ground, he was of the opinion that if there was any change in the circumstances, the petitioner should apply for modification or setting aside of the original order. Aggrieved of this, the petitioner has come up in revision. I have heard the learned counsel for the parties. It is urged by the learned counsel for the petitioner that when the petitioner had shown grounds for not complying with the order u/s 125 (1) Cr. P. C. , the Magistrate was bound to make an enquiry into that and without doing so, he could not have thrown out the petitioner's objections. In support of this contention, he has placed reliance upon State of Mysore vs. Sivashankar (1), Kamala Sundari vs. Nilmony Das (2) and Hari Narayan vs. Rani Devi (3 ). On the other hand, the learned counsel for the non-petitioner Smt. Hemlata has supported the order and has placed reliance upon Bhupinder Singh vs. Daljit Kaur (4 ). Having given my careful consideration to the rival contentions, I am of the opinion that the revision has no substance. Even according to the authorities relied upon by the learned counsel himself, the provisions of s. 125 Cr. P. C. are quasi-civil and the principle of res-judicata is applicable to them. The questions which already stood decided by the order u/s 125 Cr. P. C. , could not be reopened. All that these authorities say is that grounds which came into existence after the order under s. 125 (1) had already been passed, requires an enquiry if they fall within the purview of s. 125 (5 ). That being so, the learned Magistrate was perfectly justified in refusing to make any enquiry so far as the first ground is concerned.
(3.) SO far as the second ground goes, the learned Magistrate does not appear to have given any clear finding about it but as a corollary of the first ground, the second ground does not require any further enquiry in asmuch as it has not been alleged by the present petitioner that after the order u/s 125 (1) Cr. P. C had been passed, the alleged mutual consent had been arrived at for living separately. On the other hand, from the very trend of the reply, it appears that the case of the petitioner was that from the very beginning the non-petitioner was living separate by mutual consent. As a matter of fact, if the case of the present petitioner was that after the order u/s 125 Cr. P. C. had been passed, there was a mutual agreement between the parties, to live separate then he should have given a specific date on which such an agreement had been arrived at and in the absence of such an allegation, no further enquiry in this respect also called for. So far as the third ground, namely, that the non-petitioner was earning Rs. 600/- as she was employed as teacher goes it also is not required to be enquired into when it is not alleged to have come into existence after the order u/s 125 (1) Cr. P. C had been passed. In case even if it is assumed that it is so, then it is not any of the grounds enumerated in s. 125 (5) Cr. P. C. and cannot be gone into in these proceedings. For this the learned Magistrate rightly pointed out that recourse should have been to s. 127 Cr. P. C In these circumstances, I do not find any substance in this revision and dismiss the same. . ;