JUDGMENT : G.B. Patnaik, J. - This revision is directed against the order of the learned Magistrate rejecting an application filed by the Petitioner under Sub-section (2) of Section 127 of the Code of Criminal Procedure for cancelling the earlier order of the Magistrate dated 11.11.1985 passed u/s 125 of the Code granting maintenance at the rate of Rs. 300/- per month. 2. Opposite party No. 1 for herself and for her minor child (opposite party No. 2) filed an application u/s 125 of the Code of Criminal Procedure (hereinafter referred to as the "Code") alleging that opposite party No. 1 was the legally married wife of the Petitioner and opposite party No. 2 was the child born out of their wedlock and the Petitioner was neglecting to maintain them. This application was registered as Criminal Misc. Case No. 9 of 1984. The Petitioner appeared before the Magistrate and filed his written objection. That application was, disposed of ex parta against the Petitioner by order dated 11.11.1985 granting maintenance in favour of the opposite parties to the tune of Rs. 300/- per month. The Petitioner thereafter filed an application for setting aside the ex parte order invoking the jurisdiction of the Magistrate under proviso to Sub-section (2) of Section 126 of the Code. That application was- registered as Criminal Misc. Case No. 5 of 1986. The learned Magistrate allowed the Petitioner's prayer by his order dated 5.5.1986 and set aside the ex parte order of maintenance dated 11.11.1985 subject to the condition that the Petitioner would deposit a sum of Rs. 5,000/-. This order of the Magistrate was challenged in this Court by the Petitioner in Criminal Revision No. 332 of 1986. On account of Petitioner's default, the said Criminal Revision was dismissed on 9.3.1987. The Petitioner filed another application for restoration of the said revision, but that was also dismissed on 21.4.1987. The Petitioner then filed a second revision assailing the order of the Magistrate dated 5.5.1985 on 28.5.1987 and that revision was registered as Criminal Revision No. 281 of 1987. This was disposed of by order dated 7.4.1983. It was held by this Court that on merits the impugned order of the Magistrate dated 5.5.1986 is unassailable since there is no unreasonableness in the same and the same has been passed within jurisdiction. This was disposed of by order dated 7.4.1983. It was held by this Court that on merits the impugned order of the Magistrate dated 5.5.1986 is unassailable since there is no unreasonableness in the same and the same has been passed within jurisdiction. In the meantime, the Petitioner had filed an application on 26.11.1985 u/s 11 of the Hindu Marriage Act in the Court of the Subordinate Judge, Bhubaneswar, for annulment of marriage and the same was registered as O.S. No. 204 of 1985. It is to be noted that prior to the filing of the aforesaid suit, the Petitioner had filed an application u/s 9 of the Hindu Marriage Act for a decree for restitution of conjugal right which had been registered as O.S. No. 3 of 1985 and the same was ultimately permitted to be withdrawn on an application being filed under Order 23, CPC by order dated 21.12.1985. The suit for annulment of marriage (O.S. No. 204 of 1985) was decreed, ex parte by judgment dated 21.11.1987 by the Subordinate Judge, Bhubaneswar and the decree was drawn up on 8.12.1987. In Criminal Revision No. 281 of 1987, a contention had been raised on behalf of the Petitioner that in view of the decree declaring the marriage between the Petitioner and opposite party No. 1 to be a nullity, the order granting maintenance by the Magistrate needs modification, but the learned Judge who disposed of the criminal revision did not think it proper to go into the said question and observed that the Magistrate could be approached for the aforesaid purpose. In view of this observation of the learned Judge, the Petitioner filed a fresh application under Sub-section (2) of Section 127 of the Code of Criminal Procedure which was registered as Criminal Misc. Case No. 35 of 1988. The opposite parties filed objection to the same on 9.7.1988. The Magistrate rejected the aforesaid application by his order dated 5.8.1988 and it is this order of the Magistrate which is being impugned in the present revision. In the meantime, opposite party No. 1 has filed an application under Order 9, Rule 13, Code of Civil Procedure, on 9.5.1988 for setting aside the ex parte decree of annulment of marriage passed in O.S. No. 204 of 1985 and that application has been registered as Miscellaneous Case No. 158 of 1988 which is still pending. In the meantime, opposite party No. 1 has filed an application under Order 9, Rule 13, Code of Civil Procedure, on 9.5.1988 for setting aside the ex parte decree of annulment of marriage passed in O.S. No. 204 of 1985 and that application has been registered as Miscellaneous Case No. 158 of 1988 which is still pending. The learned Magistrate while rejecting the Petitioner's application for cancelling the earlier order came to the conclusion that the Subordinate Judge, Bhubaneswar, had no jurisdiction to pass a decree for annulment of marriage and therefore, the said decree could not be pressed into service for modifying or cancelling an earlier order of a Magistrate u/s 125 of the Code. Moreover, the Magistrate also came to the conclusion that the Petitioner in every stage of the proceeding u/s 125 in Misc. Case No. 9 of 1984 had been admitting his marriage with opposite party No. 1 and opposite party No. 2 to be his daughter and, therefore, it was not open to him to apply for annulling the order under Sub-section (2) of Section 127 of the Code on the ground that marriage between him and opposite party No. 1 has been declared as null and void. 3. Mr. Rath, the learned Counsel for the Petitioner, raises the following contentions in assailing the order of the Magistrate: (i) In view of the judgment of the Subordinate Judge in O.S. No. 204 of 1985 granting a decree u/s 11 of the Hindu Marriage Act and annulling the marriage, it was not open for the Magistrate to come to a conclusion that the decree is without jurisdiction and the Subordinate Judge had no competence to pass a decree and, therefore, the impugned order cannot be sustained; and (ii) In view of the decision of the Supreme Court in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another holding that where the marriage is a complete nullity, an application u/s 125 is not maintainable and in view of the decree of the Subordinate Judge in the present case, the Magistrate had no jurisdiction to pass an order u/s 126 of the Code and, therefore, the impugned order of the Magistrate refusing to cancel the earlier order is illegal, invalid and inoperative and must be interfered with by this Court. Both these contentions require careful examination of the law on the Subject and the different orders passed by this Court attaching finality to some. 4. So far as the question of lack of jurisdiction of the Subordinate Judge in entertaining an application for annulment of marriage u/s 11 of the Hindu Marriage Act is concerned, Mr. Padhi, the learned Counsel appearing for the opposite parties, fairly states that the Magistrate was in error to come to the said conclusion particularly when the Petitioner and opposite party No. 1 were living as husband and wife before their separation at Bhubaneswar. In this view of the matter, the Magistrate must be held to have erred in law in not taking into consideration the decree of the Subordinate Judge annulling the marriage between the Petitioner and opposite party No. 1. The first contention of Mr. Rath for the Petitioner must, therefore, be upheld. 5. So far as the second submission of Mr. Rath, the learned Counsel for the Petitioner, is concerned it depends upon an interpretation of the relevant provisions of the Code and the decisions referred to by the learned Counsel for the Petitioner, Section 125 of the Code enables a Magistrate to grant maintenance in favour of a wife and her children if her husband having sufficient means neglects or refuses to maintain the wife who is unable to maintain herself, Section 126 of the Code prescribes the procedure for disposal of an application filed u/s 125 and proviso to Sub-section (2) of Section 126 enables the Magistrate to proceed to hear and determine the case ex parte if he is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the court. The said proviso also further enables the Magistrate to set aside an ex parte order if an application is filed within three months from the date of the ex parte order and if good cause is shown subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. In the present case, the Magistrate did pass an ex parte order on 11.11.1985 granting maintenance at the rate of Rs. 300/- per month in favour of the wife and daughter of the Petitioner in Criminal Misc. Case No. 9 of 1984. In the present case, the Magistrate did pass an ex parte order on 11.11.1985 granting maintenance at the rate of Rs. 300/- per month in favour of the wife and daughter of the Petitioner in Criminal Misc. Case No. 9 of 1984. On an application being filed for setting aside the same in Criminal Misc. Case No. 5 of 1986, the Magistrate also set aside the earlier order subject to deposit of Rs. 5,000/- in Criminal Misc. Case No. 5 of 1986, by order dated 5.5.1986. This order of the Magistrate dated 5.5.1986 has been upheld by this Court in Criminal Revision No. 281 of 1987 disposed of on 7.4.1988 by dismissing the criminal revision filed by the Petitioner. Therefore, the order of the Magistrate dated 5.5.1986 passed in Criminal Misc. Case No. 5 of 1986 has become final and if the Petitioner has deposited the cost of Rs. 5,000/- as directed, then the earlier ex parte order dated 11.11.1985 passed in Criminal Misc. case No. 9 of 1984 must stand annulled and if the said amount has not been deposited, then the earlier order granting maintenance at the rate of Rs. 300/- per month remains operative. I am not in a position to come to a conclusion whether the sum of Rs. 5, 0001- as directed by the Magistrate in his order dated 5.5.1986 in Criminal Misc. Case No. 5 of 1986 has been deposited or not, on which it would depend as to whether the earlier ex parte order of maintenance passed on 11.11.1985 still subsists or stands annulled. 6. Be that as it may, the next question which crops up for consideration is the effect of the decree of annulment passed by the Subordinate Judge in O.S. No. 204/1985. As it appears, on the ex parte evidence of the Petitioner, the Subordinate Judge coming to a finding that opposite party No. 1 had married one Balunkeswar of village Pipudidei prior to her marriage with the Petitioner without obtaining a decree for divorce, held that the marriage between the Petitioner and opposite party No. 1 must be held to be null' and void. Section 11 of the Hindu Marriage Act specifically declares any marriage contravening anyone of the conditions specified in Clauses (i), (iv) and (v) of Section 5 to be null and void and on a petition presented by either party to the marriage against the other will be so declared by a decree of nullity, Clause (i) of Section 5 of the Hindu Marriage Act lays down that for a lawful marriage, the necessary condition is that neither party should have a spouse living at the time of marriage, Obviously, therefore, a marriage in contravention of this condition is null and void. If, therefore, the finding of the Subordinate Judge on the ex parte evidence of the Petitioner is sustained, then the marriage between the Petitioner and opposite party No. 1 must be held to be null and void. There is no doubt that the expression "wife" used in Section 125 of the Code means a legally married wife not covered by Section 11 of the Hindu Marriage Act. It has also been so held in the decision of the Supreme Court in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another referred to supra, In this view of the matter, where a decree of annulment of marriage has been obtained, a Magistrate would be entitled to cancel an earlier order passed u/s 125 in exercise of his powers under Sub-section (2) of Section 127 of the Code. But in the present case, the ex parte decree passed in C.S. No. 204 of 1985 is being assailed by opposite party No. 1 by making an application under Order 9, Rule 13, Code of Civil Procedure, and the proceeding has not been concluded. There is no independent material before the Magistrate for coming to a conclusion that opposite party No. 1 had married somebody else and during the subsistence of the said marriage, she married the Petitioner and further it is the admitted case that opposite party No. 2 is the child of the Petitioner and, therefore, would be entitled to maintenance u/s 126 irrespective of the fact whether the marriage between the Petitioner and opposite party No. 1 is held to be void, Or not. In this view of the matter, I do not think it proper to cancel the earlier order of maintenance merely on the ex parte decree of nullity passed by the Subordinate Judge u/s 11 of the Hindu Marriage Act which is under challenge bit way of an application under Order 9, Rule 13, Code of Civil Procedure, particularly when the Petitioner-father is liable to pay maintenance for the child-opposite party No. 2. That apart, an order cancelling maintenance passed under Sub-section (2) of Section 127 of the Code becomes operative from the date of the order and not retrospectively. This conclusion of mine is supported by the decision of this Court in Padma Keswar Panda v. Smt. Harapriya Panda 1980 C.L.R. 128, In view of the aforesaid conclusions of mine. I am unable to set aside the order of the Magistrate refusing Petitioner's application for cancellation of the earlier order of maintenance, though on the question of jurisdiction of the Subordinate Judge, Bhubaneswar, to entertain and dispose of an application u/s 11 of the Hindu Marriage Act, I hold that the Magistrate was entirely in error in coming to the conclusion that the said decree was not by a competent court. The necessary consequences, therefore, would be that the order of maintenance passed by the Magistrate ex parte shall remain operative until the Petitioner deposits Rs. 5,000/- as ordered by the Magistrate in the subsequent proceeding in Criminal Misc. Case No. 5 of 1986. On depositing the said amount of Rs. 5,000/- as ordered by the Magistrate, by order dated 5.5.1986, the earlier order dated 11.11.1985 granting maintenance stands annulled and the proceeding is revived to the stage as it was on 11.11.1985 when the ex parte order of maintenance was passed. In the meantime, if the ex parte decree of annulment of marriage is set aside on the application of opposite party No. 1 under Order 9, Rule 13, Code of Civil Procedure, then the said decree cannot be locked into for passing an order of cancellation u/s 127(2) of the Code. In the meantime, if the ex parte decree of annulment of marriage is set aside on the application of opposite party No. 1 under Order 9, Rule 13, Code of Civil Procedure, then the said decree cannot be locked into for passing an order of cancellation u/s 127(2) of the Code. If, however, the application for restoration is rejected and the decree of annulment of marriage reaches finality, then it would be open for the Petitioner to approach the Magistrate again in looking his jurisdiction under Sub-section (2) of Section 127 and in that event the Magistrate would pass appropriate orders bearing in mind the law on the subject as discussed earlier. In the event the Petitioner deposits the sum of Rs. 5,000[- as directed by the Magistrate in Criminal Misc. Case No. 5 of 1986 and the earlier ex parte order granting maintenance stands annulled and the proceeding is revived, then in the interests of justice that proceeding may not be continued until a final decision on the application of opposite party No. 1 before the Subordinate Judge under Order 9, Rule 13, Code of Civil Procedure, is taken. Parties should also take expeditious steps for early disposal of the application under Order 9, Rule 13 of the CPC pending before the Subordinate Judge and I have no doubt in my mind that the Subordinate Judge would dispose of the same as expeditiously as possible. 7. Since the grant of maintenance in favour of opposite Party No. 1 is directly related to a determination of her status as the legally married wife or not, it would be meet and proper to direct that the order of maintenance so far as the wife is concerned may not be enforced against the Petitioner till a finality is the proceeding u/s 11 of the Hindu Marriage Act. But the Petitioner in law is bound to maintain the child (opposite party No. 2.1 and Mr. Rath for the Petitioner is not in a position to resist the claim of opposite party No. 2. Since the maintenance in question had been awarded both for the mother and the child, I would direct that a sum of Rs. But the Petitioner in law is bound to maintain the child (opposite party No. 2.1 and Mr. Rath for the Petitioner is not in a position to resist the claim of opposite party No. 2. Since the maintenance in question had been awarded both for the mother and the child, I would direct that a sum of Rs. 150/- (one hundred and fifty) per month be continued to be paid by the Petitioner towards maintenance of the child and maintenance for opposite party No. 1 may not be enforced against the Petitioner until finalisation of the proceeding u/s 11 of the Hindu Marriage Act. This Criminal Revision is disposed of accordingly.