( 1 ) FEELING aggrieved by the impugned order dated 28th July, 2005, passed by the Principal Judge of the Family court, Gwalior in case No. 76/05, this petition has been filed for setting aside the order. Vide impugned order, the learned Judge has disposed of two applications :- 1. An application on behalf of the respondent under Section 125 (3) of Cr. P. C. for granting stay against the recovery of the maintenance allowance. This application has been allowed.

( 2 ) REJECTED another application filed on behalf of the petitioner under the same provision of Cr. P. C. requesting therein to send the respondent in jail in default of non-payment of the same maintenance allowance.

2. Shri D. N. Gupta, learned counsel appearing on behalf of the petitioner has submitted that there is no provision in Cr. P. C. or even in Section 125 (3) of Cr. P. C. under which recovery of an amount of maintenance can be stayed. It is also submitted by him that for every breach, the defaulter-husband can be sent to jail as provided with Section 125 (3) of cr. P. C. However, during course of arguments, he has admitted that his application was that the respondent is to be sent to jail for non-payment of the same amount for which he has already served the jail sentence.

( 3 ) SHRI P. K. Chaturvedi, the learned counsel appearing on behalf of respondent, while drawing attention on the judgment of this Court in Gulamnabi v. Raisabi has submitted that these proceedings are of quasicivil nature and every Court has inherent powers to do just and to undo unjust. It is also submitted by him that prior to the impugned order vide order dated 17. 03. 05 similar nature of the order was passed staying the maintenance but the petitioner did not challenge that order. Hence, according to the principles of res Judicata, that order has become final against the petitioner and now, petitioner is estopped from challenging this subsequent order through this petition.

( 4 ) SHRI Gupta has submitted in reply that the order dated 17. 03. 05 automatically had become ineffective, hence he did not challenge the same in this Court.

( 5 ) ON perusal of the order dt. 17. 3. 2005, it appears that one application under section 127 (3) of Cr. P. C. was filed on behalf of the respondent, alleging therein that the petitioner has remarried on 5th June 2001. The learned counsel appeared on behalf of the petitioner had refused to receive the notice about that application. In view of that it was ordered that till disposal of that application under section 125 (3) of Cr. P. C. , no order about further recovery could be passed against the respondent particularly, in view of the fact that he has already served jail sentence with regard to the arrears. By non-impugning that order by the petitioner, the argument of the respondent that the petitioner is estopped or prohibited by the principles of res judicata from impugning the second order staying the recovery cannot be sustained. The earlier order was not a final decision of the case, it was passed through the proceedings and as argued by Shri Gupta on behalf of the petitioner, that order passed on 17th March, 2005 had automatically became ineffective, hence there was no necessity for the petitioner to challenge that order in the higher Court. Awarding maintenance is always considered for the sake of livelihood for the wife or children. Mere filing an application under section 127 (3) of Cr. P. C. impugning that order of maintenance on the ground of second marriage, ought not to be stayed. In such cases, the learned Magistrate ought to have decided the application at an early stage. In view of this, granting stay against the recovery of the maintenance allowance by the learned Magistrate appears to be an abuse of the process of the Court, which requires to be set aside.

( 6 ) ABOUT the next contention of Shri gupta that the respondent is liable to serve further sentence for the same default, if amount due is not paid/recovered. The p