An application for cancellation of a maintenance order can only be made under Section 127, Criminal Procedure Code, and not under Section 125(5), Criminal Procedure Code.

( 1 ) THIS is an application by the husband. Opposite party is his wife and was allowed a maintenance of Rs. 300/- per month, as per order of the Judicial Magistrate, Moradabad. The revision preferred against that order was also dismissed, but the amount was split up Rs. 250/- was allowed for the wife and Rs. 50/- per month was allowed for the child.

( 2 ) AN application was moved on 23. 2. 1982 for the recovery of the maintenance allowance. The applicant claimed to have filed an objection dated 7. 5. 1982 taking one of the ground of objection that the respondent No. 1 has been working - as teacher for last 21 years run by the District Board, Moradabad, and she has been getting about Rs. 200/- per month, hence the order for maintenance allowance cannot be enforced. It would appear from the order dated 5. 1. 1983 of the Magistrate, that he ordered that the objection will be considered under Section 127, Criminal Procedure Code on merits and as the applicant has not fulfilled the conditions imposed by the High Court regarding stay, realization warrant be issued against the applicant. A revision was filed against such order and the revisional court observing that the Magistrate has not specified what amount was due for a period one year prior to the prayer for execution and allowing the revision partly, the revisional court set aside the warrant for attachment of salary and remanded the case with the direction that after specifying the exact amount the Magistrate shall proceed for recovery of the arrears of maintenance for a period of one year and shall at the same time further proceed to dispose of the application under Section 127, Criminal Procedure Code.

( 3 ) IT is urged by the learned Counsel that his application is not under Section 127, Criminal Procedure Code, but it is an application under Section 125 (5), Criminal Procedure Code and the Magistrate before directing any recovery has to decide the objection first. It is, further, urged that actually the applicant has not applied under Section 127, Criminal Procedure Code and it is wrong to say that application under Section 127, Criminal Procedure Code is Tto be disposed of. It is also urged that no recovery proceeding can be undertaken. Section -125 (5) runs as follows:p125 (5) On proof that any wife in whose favour an order has been made under his Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. Section 127 (1) runs as below: p127 (1) On proof of a change in, the circumstances of any person, receiving, under Section 125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit, Provided that if he increases the allowance the monthly, rate of five hundred rupees in the whole shall not be exceeded; The rules of interpretation are well settled, namely, that where there are two provisions concerning the same matter a harmonious construction be made to reconcile them.

( 4 ) IT is noteworthy that the maintenance decree was upheld and confirmed in the revisional proceedings, on 30. 6. 1981. The decree itself was passed by the Magistrate on 12. 7. 1980. The application was preferred, which the applicant terms as objection, on 17. 5. 1982 and it was stated that the wife is employed since 21 years, meaning thereby that she was in employment when the decree itself was passed. When that is the position and the matter was not agitated in course of the proceedings under Section 125, Criminal Procedure Code, then it will not be open to urge that plea, except by Way of seeking modification and cancellation of the maintenance order, which is possible only under Section 127, Criminal Procedure Code. It is noteworthy that in paragraph 4 of the application, which the presen