A Muslim husband can seek cancellation of a maintenance order granted under Section 125, Cr. P. C., by filing an application under Section 127, Cr. P. C., read with Sections 4 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, upon proof of talaq and payment of maintenance for the Iddat period and dower money.

( 1 ) THIS application under Section 401 read with Section 482 of the Code of Criminal Procedure is directed against the Judgment and Order dated 29th December, 1990 passed by the learned Sub-Divisional Judicial Magistrate, Barasat in Misc. Case No. 49 of 1989 of his Court. By the said order the learned SDJM dismissed petitioner's application under Section 127 of the Code of Criminal Procedure for cancellation of an earlier order dated 18th August, 1988 granting maintenance of Rs. 200/- p. m. to the O. P. wife and Rs. 100/- p. m. to their only child under Section 125, Cr. P. C. The ground on which the said application under Section 127, Cr. P. C. was based was that the petitioner had in the meantime given talaq to the O. P. wife and that as in pursuance of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, Denmahr and maintenance during the Iddat period had already been sent to her and accepted by her, the order of maintenance under Section 125, Cr. P. C. was liable to be withdrawn or vacated. But the application under Section 127 was rejected by the learned SDJM by the impugned order and being aggrieved and dissatisfied with the same the petitioner has come up with the present revisional application.

( 2 ) MR. Yamen Ali, learned Advocate appearing for petitioner at the very outset submitted that he was not challenged the impugned order in so far the same relates to paying maintenance to the child who was living with the mother as the petitioner is eager and willing to maintain the child. As a matter of fact, the petitioner in open Court handed over in cash whatever sum had fallen in arrear and was due to the child by virtue of the order passed by the learned SDJM. At the same time, Mr. Yamen Ali oil behalf of his client undertook to remit by money order future maintenance allowance for the boy at the address of the mother month by month. Thus subject to the said undertaking there is no dispute between the parties in regard to the monthly maintenance allowance payable to the boy and accordingly this revisional application so far as the boy is concenred fails and stands dismissed.

( 3 ) MR. Yamen Ali next submitted that persuant to the decree of restitution of conjugal rights passed by the learned Munsif, 1st Court, Barasat in Case No. Mat. 28 of 1986, the O. P. wife was invited to live with the husband, the lawyer's notice whereof dated 15. 8. 1988 was also served upon her by registered post but neither the wife came back nor any reply from her was received by the petitioner. However, the petitioner paid her due monthly maintenance all along. On 27th September, 1989 the petitioner being exasperated gave talaq to the O. P. by pronouncing3 talaqs in presence of witnesses and the same was also recorded in writing as a talaqnama which was sent to her by registered post with acknowledgment due. But the same was refused by her. The petitioner hereafter sent the said talaqnama to the O. P. wife under certificate of posting. Simultaneously Denmohr and maintenance during the Iddat period were sent by money order which were accepted by her and then the petition under Section 127, Cr. P. C. was lodged for cancellation or withdrawal of the order of mainte- nance passed earlier. The petitioner also adduced evidence in support of the factum of talaq but the learned SDJM. Mr. Yamin Ali contended, failed to appreciate the evidences recorded by him and failed to apply correctly the law appelicable in the matter and came to an absolutely wrong decision.

( 4 ) THE O. P. wife contests this revisional application on the grounds, first that the factum of talaq was not established by cogent evidence, secondly, the provisons of the Muslim Women (Protection of Rights on Divorce) Act, 1986, cannot be invoked by an application under Section 127, Cr. P. C. for divesting the wife of the maintenance allowance passed earlier under Section 125, Cr. P. C. thirdly, as Mr. Rahamani, learned Advocate