A husband can raise objections of adultery and wife's refusal to live with him in a proceeding for enforcement of a previous maintenance order under Section 488(3), CrPC. A cancellation order under Section 488(5), CrPC can affect arrears due up to the date of the order, rendering the maintenance order incapable of execution. The father is liable to maintain his daughter, even if she is not living with him, until she is capable of maintaining herself.

JUDGMENT :

S. Acharya, J. - This is a revision against an order passed by the Judicial Magistrate First Class in a proceeding u/s 488, Code of Criminal Procedure dismissing the Petitioner's prayer to order for the payment of the maintenance allowance of Rs. 30/. P.M., previously ordered in her favour, and to increase the said allowance from Re. 30/- to Re. 50/- on the ground that another daughter was born to her through the opposite party. The opposite party took the defence that he was unaware of any previous order of maintenance granted in favour of the Petitioner, and that he never paid any allowance to her. He further alleged that the Petitioner was not entitled to any such maintenance as she was living in adultery, which is evident from the fact that she begot her 2nd female child through one Chakradhar Rout, a Contractor, with whom she was living as a kept wife, and the said child was aged about 4 months by the date she filed the petition. It was also urged by the opposite party that the Petitioner was not entitled to any such maintenance as she refused to live with him without any just cause and for sufficient reason.

2. Certain relevant findings arrived at by the Court below on thorough and cogent consideration of the affidavits and the evidence on record are as follows:

The story given by the' Petitioner as to the place of her abode at Bhubaneswar appears to be a myth. It is difficult to believe, that after p.w. 1 got a decree of maintenance from Court in 1964 against the opposite party. Opposite party used to regularly come to her, and also living as husband and wife and they had also physical union so as to begot the child, (the second daughter Even though there is no sufficient proof' to come to the conclusion that the baby daughter was born through Chakradhar (there can be no direct proof of such a fact), it cannot be believed on the foot sand circumstance of the case that the baby was born due to the union of p.w. I, and the opposite, party still taking all the circumstance into account there is some evidence to show that p.w. 1 was not leading a life free from doubt and was found living in the house of Chakradhar Rout. As the opposite party a specific allegation, both In his written statement and also in his evidence to the effect that the Petitioner refused to live with him without sufficient reason, was found not to have been challenged by the Petitioner in any manner whatsoever, the Court below held that under Sub-section (5) of Section 488 such refusal by itself was a just ground for refusing maintenance to the Petitioner.

3. Certain admitted facts are as follows: Opposite party married the Petitioner about 10 or 12 years before the impugned order was passed; Petitioner bad a daughter through opposite party who was then 7 years old; Ex-parte order against the opposite party to pay maintenance to the Petitioner Rs. 30/- P.M. was passed on 8-10-1964; opposite party was serving at Koraput on a monthly salary of Re. 120/- since 1962.63-.

4. It was contended by Mr. Mohanty, the learned Counsel for the Petitioner, that the petition in the Court below was one under Sub-section 30 of Section 488, Code of Criminal Procedure seeking the enforcement of the order passed previously in the Section 488 proceeding, and 80, in this proceeding it was not open to the opposite party to raise such objection on the grounds of adultery and/or of the Petitioner's refusal to stay with the opposite party. The opposite party could raise such objections under Sub-section 5 only by a separate petition to that effect. Thus the question in short is whether the plea of adultery and/or the wife's refusal to live with her husband without sufficient reason, could be raised in proceeding where the wife is seeking enforcement of an order u/s 488, Code of Criminal Procedure passed previouslyin her favour. Mr. Mohanty in support of his above contention cited the decision in Ram Kishore Vs. Sm. Bimla Devi and Another wherein Mulla, J. disagreeing with