P.K.Sinha, J.

1. This is a petition u/s. 482 of the Code of Criminal Procedure (the Code, in short) praying therein for setting aside of quashing the order dated 6.9.2002 recorded by the learned 1st Additional Sessions Judge, Nawadah in Cr. Rev. No. 3 of 2002/90 of 2000 as well the order dated 17.8.2000 recorded by Shri Bipin Bihari, Judicial Magistrate, First Class at Nawadah in Maintenance Case No. 39 of 1997 corresponding to Trial No. 607 of 2000.

2. The facts, in brief, are that before the learned Magistrate the application for maintenance was brought by the opposite party No. 2, Smt. Manju Dayal against her husband, who is petitioner here, namely, Devendra Prasad @ Sidharth under sec. 125 of the Code. On hearing the matter, the application was allowed and the husband was directed to pay a sum of Rs. 500.00 per month as maintenance. That matter, thereafter went to revision, aforesaid, which was dismissed giving rise to the instant petition.

3. In this case, at the time of admission stage itself the learned Counsel for the petitioner, learned Additional Public Prosecutor and learned Counsel for opposite party No. 2. Smt. Manju Dayal have been heard and, therefore, this petition is being disposed of at this stage.

4. Two grounds were urged by the learned Counsel for the petitioner in support of his contention. It was submitted that from the evidences of the parties in the Court of the Magistrate it was clear, as also per their statements given in writing, that the instant petitioner was ready to keep opposite party No. 2 with him and was ready to maintain her but she herself had denied to live with him, and finding merit in her denial to live with the petitioner the learned lower Courts had allowed maintenance. The first ground was that whether or not the plea of the opposite party No. 2 was correct for not living with the petitioner, could have been considered only at the stage when order recorded under Section 125(1) was put to execution under the proviso to Sub-sec. (3) of sec. 125 of the Code. For this, the learned Counsel has relied upon a decision of this Court in the case Subhagi Devi V/s. Murli Pradhan AIR 1968 Patna 139. Second ground was that, in any case, the ground given by the petitioner in the Court of Magistrate for refusing to live with the instant petitioner was not valid or reasonable hence such ground should have been ignored by the learned Magistrate as well by the Revisional Court.

5. Besides these two points a technical point was also taken that when the application was filed in the lower Court for maintenance and when the order was passed, the Family Court had already come into existence debarring the jurisdiction of the Magisterial Courts and, in that view of the matter also the orders recorded by the lower Courts now incompetent and not in accordance with law. However, insofar as this last point is concerned, learned Additional Public Prosecutor pointed out that this case related to the District of Nawadah in which district no Family Court was constituted and, in that view of the matter, an application u/s. 125 of the Code, would have to be decided by a Magistrate.

6. Insofar as the first ground propounded by the learned Counsel for the petitioner is concerned, the case of Subhagi Devi (supra) related to sec. 488 of the old Code. In that case it was held that Sub-sec. (3) including its two provisos came into play only after a person has failed, without sufficient cause, to comply with an order passed against him under Sub-sec. (1) and this was not applicable at the very first stage when the Magistrate was called upon to pass an order under Sub-sec. (1) of sec. 125 of the Code. His Lordship also held that what the Magistrate had to consider at the stage of passing order under Subsection (1) was whether the husband, if possessed of sufficient means, had neglected or refused to maintain his wife, and not whether the wife had refused to live with her husband.

7. In that regard, the learned Counse