A husband cannot raise the ground of divorce in a subsequent petition under Section 127 of the Code of Criminal Procedure, 1973 for cancellation of a maintenance order passed under Section 125 of the Code of Criminal Procedure, 1973 if he had not pressed this ground in the earlier proceeding under Section 125 of the Code of Criminal Procedure, 1973 and had not led any evidence to prove the factum of divorce.

1. - This is the second round of litigation by the husband apparently with a view to avoid payment of maintenance allowance awarded to the wife non-petitioner and two minor sons by a competent court under Section 125 of the Code of Criminal Procedure (hereinafter, referred to as the Code). In order to appreciate the controversy raised in this petition under Section 482 of the Code, it is necessary to give relevant facts:The wife, non-petitioner herein, had filed an application under Section 125 of the Code for grant of maintenance for herself and the two minor sons in the court of Munsif and Judicial Magistrate, Kaman. This application was filed on 27th March, 1990, and the learned Magistrate vide his order dated February 16, 1993 granted maintenance to the wife @ Rs. 500/- per month and to the minor sons @ Rs. 300/- each per month from the date of filing of the application i.e. March 27, 1990. This order was challenged in a revision petition before the Additional Sessions Judge, Deeg. However, the revision petition was dismissed by the learned Addl. Sessions Judge, vide his order dated November 4, 1993. Thereafter, the petitioner - husband approached this Court under Section 482 of the Code challenging the order of maintenance granted by the Magistrate and confirmed by the learned Addl. Sessions Judge, Deeg. This petition was decided by this Court on May 26, 1994 and the same was dismissed. It shall be useful to reproduce the order of this Court passed on May 26, 1994 :

" S.B. Criminal Misc. Petition No. 498/94,

Kallu v. Smt. Majidan

26.5.94
Hon'ble N.L. Tibrewal J.

Shri Jainendra Jain counsel for the petitioner.

Shri R.S. Agarwal, Additional Public Prosecutor for the State.

This is a petition under section 482 Cr.PC. with a prayer to set aside the judgment dated 4.11.93 passed by the learned Additional Sessions Judge, Deeg in Criminal Revision No. 8/93 whereby the order of the Munsiff and Judicial Magistrate, Kaman in proceedings under section 125 Cr.PC. was confirmed. The learned Magistrate had awarded Rs. 500/- P.M. as maintenance to the wife and Rs. 300/- P.M. to each of the minor children.

This petition can be disposed of on two counts. Firstly, against the order of granting maintenance by the Munsiff and Judicial Magistrate the petitioner had preferred a revision petition which was decided by the learned Additional Sessions Judge, Deeg and the same was rejected vide judgment dated 4.11.93. A second revision is barred by sub-section (3) of Sec. 397 Cr.PC. The aforesaid petition under section 482 Cr.P.C. The Apex Court of the country has taken a similar view in Dharampal and others v. Smt. Ramshri and others (AIR 1993 S.C. 1361).

Otherwise also, I do not find any merit in this petition to make interference in the matter of maintenance allowance. Argument of the learned counsel that the prayer of the wife as for lesser amount but still more amount of maintenance has been awarded, has no merit. Both the learned courts below have recorded a finding that the petitioner husband is earning Rs. 4,000/- per month. In these days of high cost of living the maintenance of Rs. 500/- to the wife and Rs. 300/- each to the minor children cannot be said to be excessive looking to the income of the husband. Both the children not only require meals and clothing but they also require proper education and, as such, Rs. 300/- to each children cannot be said to be excessive. It is the duty of the father to maintain the children and make proper arrangement for their meals, clothing and education.

Judged from any angle, the petition has no merit and the same is dismissed summarily.
sd/- N.L. Tibrewal, J."

2. It appears that the wife non-petitioner initiated proceedings for the recovery of maintenance allowance and the learned Magistrate has issued warrant for arrest of the petitioner vide his order dated May 3, 1994 as he failed to make the payment of maintenance allowance. That order was also challenged before the Additional District and Se