Mahmood, J.:— The facts of the case are briefly these:— On the 9th November, 1877, Laraiti obtained an order for maintenance against her Husband Ram Dial. Subsequently the husband objected to pay the allowance on the ground that his wife was living in adultery. Thereupon an inquiry was held by the District Magistrate into the matter, and on the 2 March, 1880, Ram Dial's objection was disallowed on the ground that the charge of adulterly against Laraiti was not established, and he was directed to continue to pay maintenance under the terms of the order of the 9th November 1877. In the present year Ram Dial appears to have again objected to the payment of maintenance, on the same ground; and the Deputy Magistrate, after holding an inquiry, held that the allegation of adultery made against Laraiti was estate lished, and by an order dated the 4th August, 1882, directed the discontinuance of the maintenance. Thereupon Laraiti applied to the Sessions Judge for interference, under s. 296 Criminal Procedure Code, and the learned Sessions Judge has made this, reference under that section, on the ground that the witnesses on whose evidence the Deputy Magistrate has relied stated facts relating to a period antecedent to the 2nd March, 1880, and that those facts must therefore be taken to have been adjudicated upon by the District Magistrate in his order of the 2nd March, 1880, whereby be disallowed Kam Dial's objections. It seems that the District Magistrate's order above referred to was never brought to the notice of the Deputy Magistrate, and his proceedings were therefore held in ignorance of the existence of that order.
Some doubt seems to have been raised in this case before the learned Sessions Judge, as to whether the order of the Deputy Magistrate was illegal, for the particular reason that there is no, provision in the present Criminal Procedure Code. Act X of 1872) empowering the Magistrate to cancel an order of maintenance (passed under s. 536) on the ground of the wife's subsequent adultery.
Reference also seems to have been made to the provisions of s. 537 as conferring the requisite power, but I have no hesitation in holding that section has no application to the case. And I agree with the learned Sessions Judge in the view that the Legislature in employing the words no wife shall be entitled to receive an allowance from her husband………….if she is living in adultery, used in the last part of s. 536, relate not only to the original order for maintenance, but also to the continuance of the receipt of an allowance subsequent to the original order. The section therefore implies the necessity and legality of an inquiry such as the one held by the Deputy Magistrate, and on this ground his proceedings were not open to the objection of illegality. Such was the view taken by the High Court of Bombay in the case of Chaku (1) and has since been explicitly adopted by the Legislature in the penultimate paragraph of the corresponding s. 488, of the new Criminal Procedure Code (Act X of 1882) which will come into force in a few weeks.
In dealing with the main question raised by this reference, I am of opinion that the order of the District Magistrate, dated the 2nd March, 1880, must be taken to have adjudicated upon all the facts antecedent thereto and connected with the, objection of Ram Dial as to his wife's leading an adulterous life. Upon the general principles of the rule of res judicata, I am of opinion that the Deputy Magistrate was wrong in law in re-opening matters already adjudicated upon, and his order directing the discontinuance of maintenance on the ground of fact's antecedent to the District Magistrate's order must be held to be illegal.
I therefore set aside the order of the Deputy Magistrate dated the 4th August, 1882, and direct that he should hold an inquiry de novo in regard to the adulterous conduct of Laraiti, alleged by her husband Ram Dial, with reference to the period subsequent to the District Magistrate's order of the 2nd March, 1880.
In conclusion, I Wish to observe that the record shows that the notes of evidence recorded by the Deputy Magistrate are very inadequate and vague, and the order recorded by him proceeds upon on distinct findings of facts, but upon a vague finding that “Laraiti is a bad character.” The proceedings under Chapter XLI, of the Criminal Procedure Code are judicial proceedings in their nature and must not be conducted as if they were merely ministerial matters.