A husband seeking cancellation of a maintenance order based on a Civil Court's decree of divorce must invoke the powers under Section 127(2), Cr.P.C. immediately after the decree, and cannot wait for several years and then file an application under Section 125(5), Cr.P.C.

1. This court in this application filed under Section 482, Cr.P.C. by the husband, the petitioner herein, has been given peculiar opportunity to deal with the prayer which is quite preposterous and monstrous. The prayer is this:-

(a) to direct the first respondent Family Court to take my petition dated 6. 97 presented under Section 125(5), Cr.P.C. in M.C.No.15 of 1984 into file and dispose of it according to law;

(b) to direct the first respondent Family Court to forbear from passing orders to execute the order dated 2. 97 passed in Crl.M.P.No.41 of 1996 filed in M.C.No.15 of 1984 and to recall the warrant of arrest pending against me passed in Crl.M.P.No.44 of 1996 in M.C.No.15 off 1984 and to pass such further or other orders as this Honble Court may deem fit to pass."

2. At the outset, I may mention that I really do not understand the rationale behind the attitude of the petitioner to implead the Family Court which passed the impugned order. The Registry also asusual without application of mind, has numbered this petition by allowing the party to implead the Family Court as one of the parties. This practice is to be deprecated, since the Court which issued order cannot be the party to this proceedings.

3. The only way available for the petitioner to attack or to challenge the impugned order is to file a petition to set aside the said order giving legal and valid reasons to challenge the same by adding only the other party against whom he fought with. But, curiously the petitioner is under the impression that Family Court alone is the main party to be fought with. This is quite unfortunate.

4. Be that as it may, the prayer, in my view, is quite strange and cannot be granted. The petitioner is the husband of the respondent No.2 who is the unfortunate wife. In 1984 the respondent-wife filed an application for maintenance in M.C.No.15 of 1984. After enquiry, a sum of Rs.125 was awarded as maintenance in 1985. The petitioner filed a revision against this order of maintenance. However, the same was dismissed.

5. The wife, the second respondent herein also filed a revision before the Sessions Court for enhancing the maintenance from Rs.125 to Rs.200. On considering the merits of the contention urged by the wife in that revision, the learned Sessions Judge passed an order dated 110. 1995 enhancing the maintenance from. 125 to Rs.200.

6. Thereafter, the petitioner filed H.M.O.P.No.92 of 1986 claiming divorce before the Civil Court. Though it was contested by the wife, the second respondent herein, the said petition was allowed on 22. 1989. Challenging the said order, the wife, the second respondent herein filed an appeal before the District Court and the same was dismissed on 20.2.1990, confirming the divorce ordered on 22. 1989.

.7. After six years, the wife, the second respondent herein filed a petition for enhancement in Crl.M.P.No. 41 of 1996 before the learned Magistrate showing the change of circumstances under which the wife had to incur more expenditure for her livelihood. At that point of time, the petitioner/husband filed a counter stating that already Civil Court passed a decree of divorce, as she herself deserted from the company of the husband. However, this was considered by the learned Judicial Magistrate and passed an order enhancing the maintenance from Rs.200 to Rs.400. It is stated that as against the said order, a revision has been filed before this Court and since there is a delay, an application has been filed to condone the delay and the same is pending.

8. At this stage, on 6. 1998 the petitioner filed an application before the learned Magistrate under Section 125(5), Cr.P.C. requesting the Court to cancel the earlier order passed in the year 1985 mainly on the ground that the Civil Courts have found that the wife herself deserted the company of the husband.

9. According to the counsel for the petitioner, this application has not been entertained. On the other hand, the said applicati