- (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 its. 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 persuance 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 P. C. was liable to be withdrawn or vacated.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 challenging 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 on 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 concerned 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 15.9.88 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 pronouncing 3 talaqs in presence of witnesses and the same was also recorded in writing as a talaquama which was sent to her by registered post with acknowledgement 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 maintenance 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 applicable in the matter and came to an absolutely wrong decision.
;