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 the vie we taken in the decision reported Sangavva Gulappa Khandekar Vs. Gulappa Kariyeppa Khandekar, and Hari Narayan v. Mt. Rani Devi AIR 1952 M.B. 53 , and relying on an old decision reported in ILR 5 All. 2945, held that any such plea cannot be beard at the time when the wife applies for the enforcement of the order of maintenance under Sub-section (3) of Section 488, Code of Criminal Procedure. Gulappa Kariyeppa Khandekar, and Hari Narayan v. Mt. Rani Devi AIR 1952 M.B. 53 , and relying on an old decision reported in ILR 5 All. 2945, held that any such plea cannot be beard at the time when the wife applies for the enforcement of the order of maintenance under Sub-section (3) of Section 488, Code of Criminal Procedure. It is however open to the husband to proceed only under Sub-section (5) praying for the cancellation of the order, and then such a plea can be heard. In B. Rukmini Bai Vs. B.B. Suraj Bhan Singh Ahmed, J. considered the above Allahabad Decision, and disagreed with the above view taken therein. His Lordship on a consideration of the relevant provisions of Section 488, Code of Criminal Procedure and some decisions of different Courts on this topic, held that such a "plea could be raised at the time of enforoement of the order, and it was not necessary for the husband to file a separate petition for getting the order cancelled". In holding so, Ahmed J. also taken into consideration, amongst other cases, the case reported in Sangavva Gulappa Khandekar Vs. Gulappa Kariyeppa Khandekar where the plea of unchastity was pleaded even at the time when the petition for maintenance was filed but the evidence was found to be insufficient and an order of maintenance was made. Subsequently on an application for the enforcement of the order, the husband came forward with the said plea, and on evidence the order was cancelled. In Hari Narayan v. Smt. Rani Devi AIR 1952 M.B. 53 , an identical point as in this case came up for decision. The relevant facts in that case were that the wife applied to the S.D.M. u/s 488(3), Code of Criminal Procedure for the enforcement of an earlier order of maintenance passed in favour of the wife and children, and the husband objected to the execution of the said order on the ground that the wife without sufficient cause refused to live with him. The S.D.M. took the view that it was not open to the husband to raise such an objection in this proceeding for, the execution of the order, and that if the husband desired that the order should not be executed, he must first apply u/s 488(5),Code of Criminal Procedure and have the order against him set aside. The S.D.M. took the view that it was not open to the husband to raise such an objection in this proceeding for, the execution of the order, and that if the husband desired that the order should not be executed, he must first apply u/s 488(5),Code of Criminal Procedure and have the order against him set aside. Thus the S.D.M.'s view was similar to the contention raised by Mr. Mohanty. Dixit J. held: The order of the Sub-divisional Magistrate, Panchhor directing the execution of the maintenance order without considering the objections of the Applicant (the husband) is, in my opinion, clearly wrong. The words in Section 488(3) if any person 80 ordered fails without sufficient cause to comply with the order etc. clearly indicate that when an execution of the order is applied for the husband or the father can show cause why the order should not be executed. The Magistrate must then consider judicially the sufficiency of the cause alleged by the counter-Petitioner and make an order granting or refusing the execution of the maintenance order. The contention of the non-Applicant (the wife) that the Applicant cannot be permitted to show cause against the execution of the order, unless and until he gets the maintenance order cancelled under Sub-section (5) cannot be accepted; for such a construction would mean ironing the words "failing without sufficient cause" which occur in Sub-section (3) and also the Sub-section (4) which lays down that a wife is not entitled to receive an allowance, if, without any 'sufficient reason, she refuses to live with her husband. I, therefore, think the Sub-divisional Magistrate should have considered the grounds alleged by the Applicant against the execution of the order and having regard to all the circumstances then determined whether the order should be executed or not. (Insertions within braokets are mine) I am respectfully in full agreement with the above mentioned views taken in the Andhra and Madhya Bharat decisions, which are supported by many decisions of other High Courts. In view of the law discussed above there was no legal bar for the husband, the opposite party herein, to take up both the above mentioned pleas in this proceeding u/s 488(3), Code of Criminal Procedure and the Court below was legally justified in entertaining and considering the merits of the said pleas. On the above considerations the contention put forward by Mr. On the above considerations the contention put forward by Mr. Mohanty is not tenable. 5. In this case the earlier order for maintenance was passed exparte against the opposite party on 8-10-1964. He specifically "alleged that he bad no knowledge or information about the previous case or the order of maintenance passed therein. The allegation of unchastity or adultery could be made only because of the birth of the 2nd daughter to the Petitioner admittedly in 67 i.e., after 3 years of the above mentioned order for maintenance, during which period their access to each other could not at all be believed by the Court below. The opp. party's 'allegation' that the Petitioner refused to live with her husband without sufficient reason, could not be made previously as the earlier case was decided exparte against the opposite party, and there is nothing on record to show that opposite party wilfully avoided notice or neglected to attend the Court. As the previoqs order was passed on 8-10-1964 at Bhuhaneswar, and admittedly, as found by the Court below, the opposite party since 1962-63 was serving as a petty field man at Koraput, it rather sounds probable that he did not have any notice of the previous proceeding at Koraput. On the above facts it cannot be said that the opposite party had an opportunity to raise the above mentioned pleas in the earlier proceeding and he wilfully desisted from the same. 6. There is however no clear finding in this case that the Petitioner was living in adultery although the Court found that there was some evidence to show that the Petitioner was leading a life not free from doubt and was found living in the house of Chakradhar Rout. But the Court's finding, regarding the refusal of the Petitioner to live with her husband, the opposite party, without sufficient reason, is definite and convincing, and Mr. Mohanty could not successfully assail the said finding of fact. Under Sub-section (5) of Section 488, an order of maintenance under this section shall be cancelled on proof that the wife, in whose favour the order has been made, is without sufficient reason refuses to live with her husband. Thus the Petitioner is not entitled to any maintenance allowance for herself, and the impugned order to this effect is legal and justified. 7. It was then contended by Mr. Thus the Petitioner is not entitled to any maintenance allowance for herself, and the impugned order to this effect is legal and justified. 7. It was then contended by Mr. Mohanty that the previous order u/s 488(1) and (2) remained good until it was cancelled, and the impugned order, cancelling that previous order, could not have any retrospective effect so as to disallow the maintenance allowance which had accorued to the wife prior to the cancellation of that order. This point also was directly decided by Dixit J in the above mentioned Hari Narayan's case, as follows: As regards the question whether if the order of maintenance is cancelled u/s 488(5) the cancellation order can effect the arrears due up to the date of the order, it seems to me from the language used in Sub-section (3) and (4) that if sufficient cause for non-payment is shown and the Magistrate is satisfied that the wife, without sufficient reason refuses to live with her husband the order of maintenance cannot be enforced in the manner provided in Sub-section (3) and the wife is not entitled to receive the amount of maintenance allowance; and that must apply to arrears of maintenance due under an order. It is true that Sub-section (5) does not deal with the question of execution of the order for maintenance but provides for cancellation of the original order for payment of maintenance and the use of the word "cancel" does not necessary import that the cancellation order has retrospective effect. But if an order for payment of maintenance which is cancelled under Sub-section (5) on proof that the wife, without sufficient reason refuses to live with her husband, is also incapable of execution on same ground under Sub-section (3) it seems to me difficult to hold that the arrears of maintenance allowance due up to the date of the cancellation order can be receive red. I am fortified in the view I have taken, by a decision of a Division Bench of the Bombay High Court reported in Sangavva Gulappa Khandekar Vs. Gulappa Kariyeppa Khandekar. The learned Counsel for the non-Applicant has relied on Bhag Sultan v. Md. Akbar Khan AIR 1930 Lab. 99, which was followed in Pari Bala v. Kibal Ram AIR 1938 Cat 144. Gulappa Kariyeppa Khandekar. The learned Counsel for the non-Applicant has relied on Bhag Sultan v. Md. Akbar Khan AIR 1930 Lab. 99, which was followed in Pari Bala v. Kibal Ram AIR 1938 Cat 144. In these cease it has been held that the cancelling order has no retrospective effect so as to disallow the prior allowed maintenance and that the maintenance order stands good until it is cancelled. The learned Single Judges of the Lahore and Calcutta High Courts have not given any reasons in Support of, their conclusions and with all due deference to them I find myself unable to agree with their view that the order of cancellation takes effect from the date of the order and has no retrospective effect. On the above view, with which I am in full agreement, this contention of Mr. Mohanty also fails. 8. On the unassailed finding of fact of the Court below, that it cannot be believed that the 2nd daughter was born to the Petitioner due to her union with the opposite party, he cannot be asked to pay any maintenance for this 2nd child of the Petitioner. 9. However, the Court's findings that no allowance should be paid for the maintenance of the first daughter, as the opposite party never refused or neglected to maintain the said first daughter, cannot be sustained. Admittedly the Petitioner begot the said first daughter through the opposite party, and the said daughter at the time of passing of the impugned order in 1968, was aged only 7 years; Such a child, has to be maintained by the father, so long she is incapable of maintaining herself. The opposite party cannot refuse to maintain his daughter on toe ground that she is not living with him, and that he is ready and willing to maintain her if she is left in his care. The first child is a daughter and is about 9 years old at present, and is staying with her mother, the Petitioner, may not be due to her own choice, but because she is in the possession and control of her mother, and as such she bas to be maintained by her father, the opposite party in this case, till she is unable to maintain herself. That being so the opposite party has to pay a suitable maintenance allowance to the Petitioner for the maintenance of the first daughter, born to the Petitioner through the opposite party. 10. In the result, therefore, I will maintain the order of the Court below so far as it relates to the dismissal of the Petitioner's prayer for maintenance allowance for himself. The impugned order, so far as it relates to the first daughter, is set aside, and it is hereby ordered that the opposite party will pay a monthly allowance of, Rs. 15/- only to the Petitioner, for the maintenance of the first daughter, and this order will take effect from the date of the impugned order i.e. from 20-8-1968, and it will remain effective till the child remains with the mother and away from his father and is considered under the law incapable to maintain herself. This revision accordingly is partly allowed in the terms aforesaid. Final Result : Allowed