JUDGMENT- A.D. MANE, J. :---The petitioner, who is the husband, questions the legality and propriety of the order made by learned Judicial Magistrate, First Class, dismissing the application for cancellation of the order for maintenance passed in favour of the petitioner No.1, (Respondent No. 1). 2. The material facts which require mention are these : In Criminal Misc. Application No. 92 of 1977 order of maintenance was passed in favour of the respondent No. 1 wife under section 125 of the Code of Criminal Procedure by learned Judicial Magistrate, First Class. The respondent No. 1 then took out recovery proceedings. In that proceedings the petitioner by his separate application numbered as Criminal Misc. Application No. 443 of 1986 pleaded that the respondent No. 1 obtained a customary divorce from him on receiving a sum of Rs. 5,000/- and as such she voluntarily surrendered her right to maintenance. He relied on a document called Kararnama written on a stamp paper of Rs. 5/- and requested the learned Magistrate to cancel the order of maintenance passed in Criminal Misc. Application No. 92 of 1977. That application was strongly opposed to by the respondent No. 1 by filing her say at Exh. 10. She denied the allegations of divorce and surrender of her right to maintenance in lieu of receipt of Rs. 5,000/- from the petitioner. She submitted that she received the amount of Rs. 5,000/- towards arrears of maintenance. The learned Magistrate dismissed the application but the petitioner challenged the order of dismissal in Criminal Writ Petition No. 8 of 1989, in this Court. By order dated 24-10-1989 this Court remanded the matter to the Magistrate with certain directions. It was firstly directed that the Magistrate should ascertain if the Deed of Divorce relied on by the petitioner was proved on the basis of a recognised custom between the parties. After the remand the evidence was adduced and on consideration of that evidence the learned Magistrate held that the petitioner failed to establish that there was recognised custom in their community whereby customary divorce can be obtained. The application was, therefore, again dismissed against which this criminal revision application is filed. 3. Mr. Garud, learned Counsel appearing for the petitioner, submits that the learned trial Magistrate has not properly appreciated the evidence adduced by the petitioner in proof of custom prevailing in the community to which the parties belong. The application was, therefore, again dismissed against which this criminal revision application is filed. 3. Mr. Garud, learned Counsel appearing for the petitioner, submits that the learned trial Magistrate has not properly appreciated the evidence adduced by the petitioner in proof of custom prevailing in the community to which the parties belong. It is also submitted that if the Kararnama is read as a whole it is evident that the respondent No. 1 obtained divorce from the petitioner and she voluntarily surrendered her right to maintenance after her divorce on receiving the sum of Rs. 5,000/- in full and final settlement of claim towards maintenance. It is, therefore submitted that the order rejecting the petitioners application for cancellation of the order for maintenance is not correct and requires to be interferred in this revision. On the other hand, Mr. Gore, learned Counsel for the respondent No. 1, urged that in the first place the evidence adduced by the petitioner to prove the custom as prevailing in the community to which the parties belong is insufficient to prove the fact that there is such a custom in the community for divorce by mutual consent. Secondly it is submitted that assuming that there is such a custom but the custom allowing divorce against wish of other party and that too in consideration of payment of money is invalid as it opposes public policy. 4. Regard may be first had to the provisions of section 127 of the Code. The section begins with the sentence that "on proof of a change in the circumstances of any person, receiving under section 125 a monthly maintenance allowance or ordered under the same section to pay monthly maintenance allowance to his wife, children, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit". Sub-section (2) read with Clause (c) of sub-section (3) of section 127 of the Code empowers the Magistrate to cancel the order made under section 125 of the Code where it appears to him that the woman has obtained a divorce from her husband and that she had voluntarily surrendered her right to maintenance after her divorce from the date thereof. 5. In order to appreciate the question involved in this criminal application it is necessary to see if there was a valid customary divorce. 5. In order to appreciate the question involved in this criminal application it is necessary to see if there was a valid customary divorce. On this point the petitioner examined three witnesses in proof of customary divorce. It is stated by the petitioner that they belong to a community known as Lohari, which is a backward class community. There prevails a custom to give divorce by mutual consent of the parties. The learned Magistrate closely examined the evidence of these three witnesses; namely; Babu Tanhaji, (Exh. 29), Balu (Exh. 30) and Kondram Kanade (Exh. 33) and observed that these witnesses are interested witnesses and instances of divorce given by them in their evidence based upon the custom prevailing in their community cannot be relied upon. 6. Now, there is no quarrel on a proposition that it is incumbent on the party setting up such a custom to allege and prove custom and it is not a theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is also equally true that the custom cannot be extended by analogy and it cannot be established a priori methods. A custom to be recognised by the courts should be (a) ancient, (b) continuous and uniform, (c) reasonable, (d) certain, compulsory and not optional, (e) peaceable and lastly, (f) not immoral. The custom which is recognised under the Evidence Act is a general custom, i.e. the custom common to a class of people living in the same district or belonging to the same caste or community. Therefore, in order to prove a custom there should be evidence of such a nature so as to prove uniformity and continuity of usage and the conviction of those following it that they were acting in accordance with law and this conviction must be inferred from the evidence. Moreover, the evidence of acts of kind, acquiescenee in those acts, their publicity, decision of courts or even of panchayats upholding such acts, statements of experienced and competent persons of their belief in such acts were legal and valid will all be admissible but it is obvious that although admissible evidence of this later kind will be of little weight if unsupported by actual examples of usage asserted. In the evidence adduced by the petitioners beyond the interested version given by these three witnesses there is no evidence of acts of the kind, acquiescence in those acts or publicity, decision of courts or even panchayats upholding or statements of experienced or competent persons of their belief that such acts are valid and are in accordance with custom which is followed by their community. The instances of two divorces which are narrated in the evidence of some of the witnesses are also not proved. Therefore, the petitioner failed to discharge his burden of proving the custom so as to keep reliance on the document which he relies on. In the absence of acceptable evidence to prove the custom set up by the petitioner, there would arise no further question to consider if writing alleged to have been executed by the respondent No. 1 is surrender of her right to maintenance in lieu of Rs. 5,000/- as full and final settlement of maintenance allowance. In this context, Mr. Gore, learned Counsel, invites my attention to some of the decisions. In (Keshav Hargoan v. Bal Gandi)1, A.I.R. 1915 Bom. 107, it was observed that a custom by which the marriage tie can be dissolved by either husband or wife, against the wish of the divorced party and for no reason but out of mere caprice, the sole condition attached being the payment of a sum of money fixed by the caste, is opposed to public policy within the meaning of section 23 of the Contract Act and is also repugnant to the Hindu Law and therefore, cannot be judicially recognised. If regard be had to the say of the respondent No. 1 it is clear that she admits having received Rs. 5,000/- but not in lieu of surrendering her rights to maintenance nor in full and final settlement of her future claim for maintenance. Indeed Mr. Garud, learned Counsel for the petitioner, tried to contend that assuming that the petitioner has not been able to prove the customary divorce yet the document may be accepted as a voluntary surrender of rights to maintenance by the respondent No. 1 on receiving Rs. 5,000/-. In this context, he relies on two decisions. In (Shrawan Sakharam Ubhale v. Durga Shrawan Ubhale and others)2, 1990 Mah. 5,000/-. In this context, he relies on two decisions. In (Shrawan Sakharam Ubhale v. Durga Shrawan Ubhale and others)2, 1990 Mah. L.J. 418 it has been laid down that whereunder the terms of the divorce deed the wife agrees not to claim any maintenance, she is not thereafter entitled to lay a claim for maintenance under section 125 of the Code of Criminal Procedure. The relevant portion which is relied on from the decision in (Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others)3, A.I.R. 1978 S.C. 1807, is from para 22 which lays down that a divorced wifes claim for maintenance contained in the Explanation (b) of section 125 of the Code continues unless parties make adjustments and came to terms regarding the quantum or the rights to maintenance. 7. The submisssion of Mr. Garud, learned Counsel for the petitioner, appears to have been misplaced on the facts found in the present case. The document upon which reliance is placed by Mr. Garud, namely; the Deed of Divorce by mutual consent of the parties on the basis of custom prevailing in the community to which the parties belong is not acceptable for the simple reason that the petitioner has miserably failed to establish the custom as recognised by law. Therefore, the document cannot be spilt up, one for surrender of rights of maintenance and another for divorce by mutual consent. That document will have to be read as a whole and therefore, on failure of the petitioner to prove the requisite condition of a valid custom for divorce by mutual consent of the parties, no further condition would arise so as to consider the case of the petitioner that the respondent No. 1 voluntarily surrendered her rights to maintenance on receiving payment of Rs. 5,000/- as full and final settlement or adjustment of her future maintenance allowance especially when the respondent No. 1 denied having surrendered such rights because the amount she received, according to her, was for arrears of past maintenance allowance. It may be stated that this is not a compromise between the husband and wife on the basis of which order could be passed by the Criminal Court in execution proceedings. 8. It will thus be seen from the foregoing discussion that the petitioner was not entitled for cancellation of the order of maintenance allowance passed against him in Criminal Misc. 8. It will thus be seen from the foregoing discussion that the petitioner was not entitled for cancellation of the order of maintenance allowance passed against him in Criminal Misc. Application No. 92 of 1977. The learned Magistrate was justified in rejecting his application. There is, therefore, no ground to interfere with the impugned order in this revision. The revision is therefore rejected. Rule is discharged. No order as to costs. Cri. Rev. appliation dismissed. *****