Honble N.L. TIBREWAL, J.—An important question of general importance has been raised in the present petition which has been filed u/s. 482 Cr. P.C. by the husband in a proceeding u/s. 125 Cr. P.C. The question which calls for consideration is whether a wife is entitled to get maintence u/s. 125 Cr.P.C. even her marriage was voidable and annulled by a decree of nullity u/s. 12 of the Hindu Marriage Act ?

2. In order to appreciate the controversy involved in the present case, the necessary facts may be given. Non-petitioner Smt. Uganti was married to the petitioner when both of them were minors. Thereafter, she moved an application u/s. 125 Cr,P.C. for grant of maintenance which was allowed by the learned Munsif & Judicial Magistrate, Hindaun city on Feb. 8, 1990, and the husband was directed to pay her maintenance allowance at the rate of Rs.400/-per month from the date of filing the application. For the arrears of the maintenance, three instalments were fixed by the Magistrate, but, it appears that the petitioner (husband) did not pay any amount towards the maintenance inspite of the order of the Magistrate.

3. During the pendency of the maintenance proceedings, the husband-petitioner filed a petition u/s. 12 of the Hindu Marriage Act to annul the marriage by a decree of nullity, and this petition was allowed, though by an ex-parte order, by the court of Addl. District Judge, Karauli dated 16.2.90.

4. In the background of the above facts, the wife moved an application under sub-section (3) of Section 125 Cr. P.C. to issue a warrant for realisation of the maintenance allowance and sentence the petitioner to imprisonment if the maintenance amount is not paid. The petitioner-husband also moved an application under sub-section (3) of Section 127 Cr-P.C. to cancel the order granting maintenance.

5. To resolve the controversy raised in the petition, it is recessary to consider the relevant provisions of the Code of Criminal Procedure and Hindu Marriage Act, 1955. Chapter IX of the Code provides for maintenance of wives, children and parents and the procedure of the same. U/s. 125, if the wife is neglected or refused to be maintained by her husband, and she is unable to maintain herself, the Magistrate may order her husband to make a monthly allowance for the maintenance of his wife, at such monthly rate not exceeding 500/-rupees in the whole. Then, sub-sec. (3) provides for the recovery of maintenance allowance due and also to sentence the husband to imprisonment if the maintenance allowance is not paid after the execution of the warrant. The explanation given u/s. 125 defines the wife as wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. Section 126 provides the procedure of the proceedings under this Chapter. Then Section 127 empowers the Magistrate to alter or cancel the order passed by him u/s. 125 Cr.P.C. under some circumstances. Sub-sec. (2) and Sub-sec.(3) of Sec. 127 are relevant for the present petition and they are reproduced as under:

"127 Alteration in allowance.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Sec. 125 should be cancelled or varied, he shall cancel the order, or as the case may be, vary the same accordingly.

(3) Where any order has been made under Sec. 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that;

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her marriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customery or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) In the case where such sum was paid before such order, from the date on which order was made,

(ii) In any other

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