K. MOCHIRAM PATRA Vs. THE STATE AND ORS.

JUDGEMENT

(1.) THE order of the learned Judicial Magistrate First Class, Bhubaneswar dated 8.9.2000, rejecting the Petitioners application under Section 125(5) of the Code of Criminal Procedure is assailed by the Petitioner in the present application under Section 482, Code of Criminal Procedure.

(2.) IT is the contention of Dr. G. Tripathy. learned Counsel for the Petitioner that in view of Sub -section (5) Section 125 of the Code of Criminal Procedure (hereinafter called 'the Code'), the learned Magistrate ought to have considered the same on its own merit, but could not have rejected it on the ground that such a petition in the Execution proceeding was not maintainable in law. Mr. K.P. Nana, learned Counsel for opp. parties 2 to 4 however submits that an application under Section 125(5) of the Code in an Execution proceeding for implementation of an order of maintenance passed under Section 125(1) of the Code and confirmed by this Court, could not be maintained and as such, the learned Magistrate has rightly rejected the same. It is his contention that in the process even though the order of the learned Magistrate directing payment of maintenance in favour of the wife and two minor children, and it was concluded and confirmed by this Court rejecting the stand of the Petitioner -husband that opp. party No. 2 is not the married wife of the Petitioner nor opp. parties 3 and 4 are his children and as such he is not liable to pay maintenance, the opp. parties are deprived of the benefit of the order passed by the Court even for their bare existence.

(3.) BOTH the Courts below have found that opposite party No. 1 has successfully proved her marriage with the present Petitioner and the allegation that the Petitioner has neglected in maintaining opposite party No. 1 as well as the two minor daughters -Opp. parties 2 and 3 and accordingly the trial Court directed payment of maintenance at the rate of Rs. 300/ - to opp. Party No. 1 and Rs. 200/ - to each of the minor daughters. The revisional Court after considering the evidence on record also agreed with the findings of the trial Court and dismissed the revision.