M. Wahajuddin, J.
1. The applicant has come forward with a prayer that the order dated 14-1-1983 may be quashed. By that order the Magistrate issued a warrant of arrest under Section 125(3), Cr. P.C. further giving certain directions in the manner of execution of such warrants. It is urged that the Magistrate wrongly assumed that the levy warrant is' not being served, because the applicant is in collusion with the police authority. It is, further, urged that the wife is serving somewhere as a teacher and the children are 11-12 years old and the applicant is entitled to their guardianship and circumstances have changed. It is also urged that the changed circumstances have to be determined first before the amount could be realized by arrest and sending to prison under Section 125(3), Cr. P. C.
2. I have considered all these arguments. Once a maintenance decree is passed, it remains executable for the sums payable under that decree until and unless that decree is modified on a proper application under Section 127, Cr. P. C. Even the order of modification will be effective only from the date such order is passed and not retrospectively. In fact, it is a settled law, but as respondent Counsel has also cited a ruling Bhupinder Singh v. Daljit Kaur : 1979CriLJ198 , I may make a mention of the same. I may, however, at the same time observe that simply because one party is entitled to guardianship, the minors would not get disentitled for maintenance; and as regards guardianship itself the forum is not that of the Magistrate's Court but is with the Court exercising powers under Guardians and Wards Act.
3. It is argued that the order is illegal. In that connection I may again refer to Section 125(3), Cr. P. C. and the facts narrated in the order of 14-1-1983. The Magistrate did give a notice when an application for realization of arrears of maintenance was made. The applicant was even served with that notice and filed reply. Thereafter he absented and thereby did not pursue with that application. That application purported to be under Section 127, Cr. P. C. but merely, preferring any such application would not amount to nullifying the decree. The conduct of the applicant is that he thereafter absented and has not put in appearance before the Magistrate so far. When that is the position, the Magistrate is justified under the law to issue warrant of arrest under Section 125(3), Cr. P. C. because it would be a case of wilful default. I do not find any illegality in the order. The application under Section 402. Cr. P. C. is dismissed. The stay order is vacated.
4. If the applicant wants to pursue his application under Section 127, Cr.P.C. he can move the Magistrate, but that would not in any way affect the execution of the existing maintenance decree, until and unless the order is modified by the Court.