Judgment This is a criminal revision case filed by Doraisami, the petitioner against the decision rendered by the lower court in M.C.No.60 of 1981 on 22.1.1983 dismissing the said petition finding that the provision of section 127(3)(a) of the Code of Criminal Procedure had not been complied with by the petitioner. 2. The revision petitioner herein filed a petition before the lower court for setting aside the order pronounced by the low court in M.C.No.97 of 1980 directing the revision petitioner herein to pay maintenance to the respondent Vasantha. The respondent herein filed M.C.NO.97 of 1980 before the lower court and obtained in her favour an order in the said petition on 25.7.81. The revision petitioner herein had been directed to pay a monthly maintenance of Rs.75 to the respondent herein. During the pendency of the petition M.C.No.60 of 1981, the order of which is now sought to be revised, O.P.41 of 1881 had been filed by the revision petitioner herein before the court of the learned Subordinate Judge, Tirupattur seeking a decree for divorce alleging that the respondent herein was pregnant through somebody else than the revision petitioner herein. The said O.P.41 of 1981 was pending disposal before the court of the learned Subordinate Judge, Tirupattur during the enquiry of this petition, namely, M.C.60 of 1981 before the lower court. According to the revision petitioner herein, the respondent herein had developed illicit intimacy with one Thangaraj of Mookanur Village. A Panchayat was held and as per the decision of the said Panchayat on 18.11.1981, the respondent herein received a sum of Rs.5,000 from the a revision petitioner herein and there was divorce of the marriage between them. The revision petitioner and the respondent belong to Vanniakula Shaktriya caste. As per their custom, divorce could be effected in that manner and as such, the divorce was a legal and valid one. According to the revision petitioner since the respondent had received a sum of Rs.5,000 for her life, she is not entitled to any maintenance from the respondent herein. Under the circumstances, the revision petitioner sought relief of setting aside the order made by the lower court in M.C.97 of 1980 directing the revision petitioner herein to pay maintenance to the respondent. 3. In the lower court, no counter was filed by the respondent herein for this petition M.C.60 of 1981. The revision petitioner herein had examined himself as P.W.1. 3. In the lower court, no counter was filed by the respondent herein for this petition M.C.60 of 1981. The revision petitioner herein had examined himself as P.W.1. P.W.2 Subramani was also examined on behalf of the revision petitioner herein. Ex.P-1 document of release () dated 18.11.1981, and Ex.P-2. copy of the order in O.P.47 of 1981, Subordinate Judge’s Court, Tirupattur dated 22.3.1982 were filed on behalf of the revision petitioner herein before the lower court in this petition M.C.60 of 1981. No. witness was examined on behalf of the respondent herein and no document was also filed on behalf of the respondent herein. On the consideration of the evidence both oral and documentary, the lower court came to the conclusion that the order in M.C.97 of 1980 is not liable to be set aside since the provisions of section 127(3)(a) of the Code of Criminal Procedure has not been complied with by the revision petitioner herein. Aggrieved by the above decision of the lower court, the husband-petitioner has come forward with this criminal revision case. 4. It is contended on behalf of the revision petitioner herein that the lower court has not properly appreciated the evidence available on record both oral and documentary and as such, the decision arrived at by the lower court is not correct and in accordance with law. 5. The point for consideration is whether there is any infirmity in the judgment of the lower court? 6. Section 12 7 of the Code of Criminal Procedure reads as follows: "127. Alteration in allowance. (1) In 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. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil court, any order made Under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil court, any order made Under section 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 section 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, re married, cancel such order as from the date of her re-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 customary 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 such order was made. (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order". 7. Sub-section (2) of section 127, Cr.P.C. has codified the law as to the effect of a decision of a Civil Court on an existing order under section 125. It makes it clear that a decree of a competent, Civil court does not automatically put an end to the jurisdiction of a criminal Court or wipe out an order made under 125. The order of Magistrate granting maintenance does not stand automatically cancelled even if the Civil Court has held that the grantee is not entitled to claim any more. The order holds good till the Magistrate passes an order of cancellation or variation under sub-section (2) of section 127. The order of Magistrate granting maintenance does not stand automatically cancelled even if the Civil Court has held that the grantee is not entitled to claim any more. The order holds good till the Magistrate passes an order of cancellation or variation under sub-section (2) of section 127. 8. The Magistrate acting under the sub-section has a discretion in giving effect to a Civil Court decree and to vary or cancel an order under S.125 provided the three conditions contemplated in the sub-section are satisfied. Though the word "shall" in section 127(2) apparently suggests that it is obligatory on the part of the Magistrate to vary or cancel the order for maintenance consequent on the civil Court passing a decree, the opening words "where it appears to the Magistrate" make it clear that the Magistrate should take into account all the attendant circumstances and exercise his judicial discretion before he varies or cancels an order of maintenance already in force. 9. It was held in N.M. Velayudhan v. P. Sukumari, (1978) Crl.L.J. 1209 that if the Magistrate is satisfied that the object of the husband in obtaining the decree was merely to get the maintenance order cancelled and not to take his wife back, he may decline to cancel the order. 10. In Nagendra Iyer v. Premavathi, (1973) L.W. (Crl.)74 it was held that although the Magistrate has jurisdiction to entertain a petition for alteration of maintenance allowance fixed under section 125 even after a decree of Civil court fixing the quantum of maintenance, the proper thing for the Magistrate to do is to refer the party to the Civil court and not to proceed to decide the application in order to prevent conflict of decision between two courts of co-ordinate jurisdiction. The Magistrate will not be exercising his discretion judicially, if, without referring the parties to Civil Court, he proceeds to consider the altered circumstances with a view to alter the quantum of maintenance fixed by a binding decision of the Civil Court. 11. It was held in Mahbub Sultan v. Qutab Din (1930)31 Crl. L.J. 770: A.I.R. 1930 Lahore 213 that the mere pendency of a civil suit in the matter of maintenance is no ground against the enforcement of an order of maintenance. 11. It was held in Mahbub Sultan v. Qutab Din (1930)31 Crl. L.J. 770: A.I.R. 1930 Lahore 213 that the mere pendency of a civil suit in the matter of maintenance is no ground against the enforcement of an order of maintenance. Since the civil court is not sitting in judgment over the Magistrate, so as to decide if he should have made the order section 125, Cr.P.C., the court cannot entertain a suit for the relief that the Magistrate should not have passed the order, or that the order should be set aside, or that there should be an injunction upon the realisations under the order. 12. In Dahvalal Amathalal v. Bai Madhukanta, (1965)(2) Crl.L.J. 497 it was held that the party, however, can seek a declaration about the status of the parties or a disqualification which, under the personal law of the parties, would disentitle the defendant to get maintenance irrespective of the Magistrate’s opinion in the criminal proceedings and armed with that declaration, he can approach the Magistrate under Section 127(2) and get the order cancelled or modified, as the case may be, so as to accord with the decision of a competent Civil Court. In this regard the decision in Mailappa Chettiar v. Sivagami Achi,, (1964)(1) Crl.L.J. 242 can also be usefully looked into. 13. Sub-Section (3) of Section 127 Cr.P.C. is a new provision which provides for the cancellation of an order for maintenance passed under Section 125 in favour of a divorced wife under the three contingencies specified in Cls.(a), (b) and (c). Under Cl.(a) if the Magistrate is satisfied that the woman has remarried after the divorce, the Magistrate has to cancel the order from the date of her remarriage. Cl.(b) provides for cancellation of order. from the dates specified in sub-cls. (i) and (ii) where the divorced woman has received either before or after the date of order the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce (vide the decision in Qayyum Khan v. Noorunnissa Begum, (1978) Crl.L.J. 1476. It is not possible for the High Court to investigate whether the particular amount has or has not been received by the divorced wife or whether that was the sum which was payable to her under the personal law applicable to the parties. It is not possible for the High Court to investigate whether the particular amount has or has not been received by the divorced wife or whether that was the sum which was payable to her under the personal law applicable to the parties. It is open to the former husband to approach the Magistrate for an order in terms of section 127(3)(b)(ii). Clause (c) provides for the cancellation of the order where the woman has voluntarily surrendered her rights to maintenance after her divorce. 14. In Bai Tanira v. Ali Hussain, (1979)2 S.C.C. 316 : (1979) S.C.C (Crl.) 473: (1979)2 S.C.R. 75 : A.I.R. 1979 S.C. 362 365 and 366: (1979) Crl.L.J. 151 Their Lordships of the Supreme court observed as follows: “Parliament intended divorcees should not derive a double benefit. If the first payment by way of Mehr or ordained by Custom has reasonable relation to the object and is a capitalised substitute for the order under section. 125-not mathematically but fairly-Then section.127(3)(b) subserves the goal and relieves the obligor, not pro tanto but wholly. The purpose of the payment under any customary or personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of section 127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential as provision for maintenance. To interpret otherwise is to stultify the project” In this regard, the following decisions can also usefully be referred to: (1) Zubedabi v. Abdul Khader, (1978) Crl.L.J. 1555: (2) Qayyum Khan v. Noorunnissa Begum (1978) Crl.L.J. 1476; (3) SK. Hamid Khan v. Mst. Jummi Bai, (1978) Jab. L.J. 343: (1978) M.P.L.J. 538; (4) Hajuben Suleman v. Ibrahim, (1977)(18) Guj.L.R. 133; (5) Kamalakshi v. Sankaran, (1979)M.L.J. (Crl.) 325: (1979) K.L.T. 5: A.I.R. 1979 Ker. 116; and Muhammed v. Sainabi, (1976) K.L.T. 711. 15. Hamid Khan v. Mst. Jummi Bai, (1978) Jab. L.J. 343: (1978) M.P.L.J. 538; (4) Hajuben Suleman v. Ibrahim, (1977)(18) Guj.L.R. 133; (5) Kamalakshi v. Sankaran, (1979)M.L.J. (Crl.) 325: (1979) K.L.T. 5: A.I.R. 1979 Ker. 116; and Muhammed v. Sainabi, (1976) K.L.T. 711. 15. The learned counsel for the revision petitioner stresses the point that inasmuch as the respondent herein has not even appeared before the lower Court and let in evidence the lower court ought to have accepted the evidence adduced on behalf of the revision petitioner herein in the petition under section 127, Cr.P.C. The learned counsel for the revision petitioner further submits that the custom among the community has been proved by the evidence of both the revision petitioner as P.W.1 and an attestor to Ex.P.1 namely, P.W.2 having been examined on behalf of the revision petitioner herein. Even at the outset, this Court has to observe that in order to prove the custom there should be ample and adequate evidence let in and proved that such a custom exists in the community by the person belonging to the community to the satisfaction of the Court. It is true that a custom followed from time immemorial for a community gets the sanction of law, provided, such a custom is proved as existing continuously for a reasonable time. This principle has been established as early as the decision in the The Collector of Madura v. Moottoo Ramalinga Sathupathy, (1867-69) 12 Moore’s Indian Appeals 397. It was held in that case as follows: “The duty of a Judge administering Hindoo law is not so much to inquire, whether the doctrine disputed is fairly deducible from the earliest authorities, as to ascertain whether it Is one that has been received by the particular School of Hindoo Law, which prevails in the District in which the case arises with which he has to deal, and whether such doctrine has been sanctioned by usage; as by the Hindoo system of law clear proof of usage will outweigh the written opinion of the text writers”. In the instant case, the evidence of both P.Ws.1 and 2 is not adequate for upholding the custom regarding divorce pleaded by the revision petitioner herein. 16. In the instant case, the evidence of both P.Ws.1 and 2 is not adequate for upholding the custom regarding divorce pleaded by the revision petitioner herein. 16. In the instant case before us, it is stated that there was a panchayat in which divorce was effected so far as legal relationship of marriage between P.W.1 the revision petitioner herein and the respondent herein is concerned and that a sum of Rs.5,000 had been paid to the respondent herein by the revision petitioner herein during the time of the panchayat and during that time it is stated that Ex.P-1, the release deed came to be written. Ex.P-1 reads as follows: A reading of the contents of Ex.P-1 shows that the condition imposed for giving Rs. 5,000 to the respondent herein by the revision petitioner herein is that she should withdraw M.C.No.97 of 1980. It is relevant in this connection to note that the said M.C.No.9 7 of 1980 had been disposed of by the Court of the learned Magistrate on 25.1.1981 itself. The date of Ex.P-1 is 18.11.1981. The lower Court is correct in having disbelieved Ex.P-1 and rejected the same. When once such a contradictory recital is found in the contents of Ex.P-1, it is clear that both P.Ws.1 and 2 are unreliable witnesses. Neither the custom pleaded in this case nor the contents of Ex.P-1 have been proved by the revision petitioner. Therefore, the lower court is correct made by the learned Magistrate in M.C.No.97 of 1980 on 25.1.1981. There is no infirmity in the judgment under revision. Hence, the criminal revision case is dismissed.