Judgment : 1. The revision is preferred as against the order passed in Crl.M.P. No. 2860 of 2009 in M.C. No. 31 of 2004 dated 26.10.2010 by the Judicial Magistrate, Thuraiyur and set aside the same and consequently set aside the order passed in M.C. No. 31 of 2004 dated 28.7.2006. 2. The 1st respondent filed M.C. No. 31 of 2004 on the file of the Judicial Magistrate, Thuraiyur for maintenance for herself and for the 2nd respondent alleging that both of them are the wife and daughter of the petitioner respectively. In the petition for maintenance case, she has alleged that the marriage between herself and, this petitioner was solemnised on 23rd of Tamil Aani month, 1993 in Sivan temple at Thiruthalaiyur and out of the wedlock, the 2nd respondent was born. 3. It is further alleged that this petitioner was leading a life with one Padma who was already married to one Kanagaraj and through whom she was having one male child and a female child among whom the male child died and that she hauled up him for leading a life with one married woman for which the petitioner told that if she wanted to live with him, she might stay with Padma, otherwise she might reside in Singalanthapuram and that the husband of the said Padma died three years back. For some time, the petitioner was paying Rs. 300/-per month and afterwards it was Rs. 400/- and then he discontinued the same. Hence, the respondent had claimed a sum of Rs. 1,000/- for herself and Rs. 750/- for her minor daughter as maintenance. 4. In the counter filed by this petitioner, he has denied the marriage between him and the 1st respondent. He would submit that the marriage between him and Padma was solemnised on 6.6.1982 and the same was registered in Pudukottai Sub Registrar office vide Regn. No. 78 of 1982. Since the 1st respondent was disturbing the marriage life of Padma, she filed a suit in O.S. No. 311 of 2004 on the file of the District Munsif Court, Pudukottai for permanent injunction against this 1st respondent. From 6.6.1982 onwards, the petitioner has been leading marriage life with Padma. 5. The learned Judicial Magistrate, Thuraiyur, on 28.7.2006 passed an order of maintenance in M.C. No. 31 of 2004 awarding a sum of Rs. 1,000/- per month for the 1st respondent and Rs. From 6.6.1982 onwards, the petitioner has been leading marriage life with Padma. 5. The learned Judicial Magistrate, Thuraiyur, on 28.7.2006 passed an order of maintenance in M.C. No. 31 of 2004 awarding a sum of Rs. 1,000/- per month for the 1st respondent and Rs. 750/- for the 2nd respondent. Since this petitioner did not appear before the trial Court, the above said order was passed ex parte. Thereafter, the petitioner filed a revision petition in Crl. Revision No. 90 of 2006 on the file of the First Additional District Judge (PCR), Tiruchirapalli and the same was allowed on 28.12.2007, on condition that the petitioner has to pay a sum of Rs.1750/-to the petitioners from 14.7.2004 upto date within eight (8) weeks and in default, the petition shall stand dismissed. This petitioner preferred Crl. O.P No. 3330 of 2008 before this Court against the above said order. On 26.8.2008, he did not press the petition and hence it was dismissed. There was no further proceedings on this petition. 6. After some time, he filed another application in C.M.P. No. 2860 of 2009 under Section 127(2) of Cr.P.C. before the Judicial Magistrate, Thuraiyur requesting the Court to cancel the order of maintenance passed on 28.7.2006 on the ground that the suit in O.S. No. 311 of 2004 was decreed by the Civil Court. In the application, he has mentioned that on 18.10.2004 since this 1st respondent, who was 1st defendant in the said suit remained ex parte, the suit was decreed ex parte and she filed an application to set aside the ex parte decree alongwith an application under Section 5 of the Limitation Act to condone the delay of 51 days in filing such application. But that application was dismissed on 21.6.2005 for default. The 1st respondent herein did not take any steps to restore the petition. Hence, the ex parte decree passed by the District Munsif Court, Pudukottai has become final. 7. The learned Judicial Magistrate, Thuraiyur dismissed the application on 26.10.2010 observing that this petitioner has not taken any steps to subject himself for DNA test to prove that he is not the father of the 2nd respondent and that there is no valid ground under Section 127(2) of Cr.P.C. for modifying or cancelling the maintenance order passed by the Court on 28.7.2006. Hence, the petitioner is before this Court by way of this revision. 8. Hence, the petitioner is before this Court by way of this revision. 8. Section 127(2) of Cr.P.C. reads as follows: “(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.” 9. The Court has to observe the conduct of the parties in this case to adjudicate the entitlement of the 1st respondent to get maintenance. In order to get maintenance under Section 125 of Cr.P.C., she has to establish that at the time of filing the petition for maintenance and during pendency of the same, that continuous valid status of marriage has been existing between them. The facts of this case are peculiar. The said Padma filed a suit in O.S. No. 311 of 2004 on the file of the Principal District Munsif Court, Pudukottai arraying this 1st respondent and this petitioner as defendants for a declaration that she is the legally wedded wife of the 2nd defendant. In the said case, both the defendants remained ex parte and hence on 18.10.2004, the said Court decreed the suit ex parte. This 1st respondent filed an application to set aside the ex parte decree alongwith an application in I.A. No. 24 of 2005 under Section 5 of the Limitation Act to condone the delay of 51 days in filing the above said petition for setting aside the ex parte decree. The said Padma appeared in the proceedings and filed counter. When the application was posted for enquiry on 21.6.2005, there was no representation on the side of the petitioner namely this 1st respondent and hence the petition was dismissed for default. The 1st respondent herein has hot taken any steps to restore the application which was dismissed for default and as such the ex parte decree has become final. 10. Even in the present proceedings, the 1st respondent has admitted that she filed I.A. No. 24 of 2005 to set aside the ex parte decree in O.S. No. 311 of 2004 and the same was dismissed and that she has not preferred any appeal. It cannot be contended that she is not aware of the above said proceedings. 10. Even in the present proceedings, the 1st respondent has admitted that she filed I.A. No. 24 of 2005 to set aside the ex parte decree in O.S. No. 311 of 2004 and the same was dismissed and that she has not preferred any appeal. It cannot be contended that she is not aware of the above said proceedings. She was fully knowing the pendency of the suit even during pendency of M.C. No. 31 of 2004 and also at the time of passing the order therein, which is evident from the allegations contained in the counter filed by this petitioner in which he has stated that Padma has filed a suit in O.S. No. 311 of 2004 on the file of the District Munsif Court, Pudukottai against this 1st respondent since she was disturbing her married life. The counter was filed as early as on 4.10.2004 itself and the 1st respondent has been having knowledge of pendency of the suit as well as the disposal and also the disposal of the application filed by her under Section 5 of the Limitation Act for default. 11. The learned counsel for the petitioner placed reliance upon the following decisions to show that existence of marital status between the spouses is essential in order to get the order of maintenance. (1) YamunabaiAnantrao Adhav v. Anantrao Shivaram Adhav and Another AIR 1988 SC 644 : (1988) 1 SCC 530 : LNIND 1988 SC 64 : (1988) 1 MLJ (Crl) 188 (2) YamunabaiAnantrao Adhav v. Anantrao Shivaram Adhav and Another 1982 (84) BOMLR 298 12. The learned counsel for the respondent would rely upon a number of decisions to support his contentions. In A.S. Govindan v. Margaret Jayammal AIR 1950 Mad 153 : LNIND 1948 Mad 125 : (1949) 2 MLJ 557 , it is observed by the learned Judge that as for the circumstances should exist even at the time of the maintenance order, that it is not as if they came into existence after the order is passed and that change in the circumstances means change in the existence of circumstances and not change in proof of circumstances. As far as the case on hand is concerned, the suit in O.S. No. 311 of 2004 was decreed on 18.10.2004 and the order in M.C. No. 31 of 2004 was passed on 28.7.2006. As far as the case on hand is concerned, the suit in O.S. No. 311 of 2004 was decreed on 18.10.2004 and the order in M.C. No. 31 of 2004 was passed on 28.7.2006. So, anterior to the disposal of the maintenance case, the decree in O.S. No. 311 of 2004 had been passed. However, this petitioner was remaining ex parte but he had alleged about the pendency of the suit in his counter itself. The 1st respondent though filed an application for condoning the delay in filing the petition for setting aside the ex parte order, she did not take further steps to restore the application after it was dismissed for default and allowed the ex parte decree to become final. 13. It is contended by the 1st respondent that even though the petitioner has come with an allegation that he was already married to one Padma much earlier to the marriage between her and the petitioner, he has not established the fact and the said circumstance would entitle the 1st respondent to get maintenance. In this context, a decision of this Court in Seerangamv. Selvi 2003 Crl.L.J. 2092 is cited in which it is observed that in a petition filed for maintenance, if the husband takes a plea that there is a first marriage with another lady and the present claim is not maintainable, the burden is on the husband and it is for him to satisfactorily prove the subsistence of earlier marriage, which is legal and valid. In the present case, even though the petitioner had not produced any materials in the earlier proceedings to establish his marriage with Padma, the suit filed by her was decreed much earlier to the passing of the maintenance order in the petition filed by the 1st respondent and she allowed the ex parte decree to become final. 14. The learned counsel for the 1st respondent also contended that the subsequent orders of the Sessions Court in R.C. No. 90 of 2006 merged with the orders passed by the Judicial Magistrate in the maintenance case, so also the order which is challenged before this Court. 14. The learned counsel for the 1st respondent also contended that the subsequent orders of the Sessions Court in R.C. No. 90 of 2006 merged with the orders passed by the Judicial Magistrate in the maintenance case, so also the order which is challenged before this Court. For the Doctrine of Merger, he placed reliance upon the following decisions – (1) S.S. Rathore v. State of Madhya Pradesh AIR 1990 SC 10 : (1989) 4 SCC 582 : LNIND 1989 SC 436 (2) Maria Ronikkam v. Aruldass 2003 (4) CTC 705 : LNIND 2003 Mad 1654 : (2004) 1 MLJ 56 15. The learned counsel for the 1st respondent also placed reliance upon a decision of the Allahabad High Court MuneshKumari v. Sheo Raj Singh 2003 Crl LJ 215 in which it is observed that when the trial Court has recorded positive findings of fact that the husband has failed to maintain the wife and neglected her, interference by the revisional Court by substituting its’ own finding and setting aside the order granting maintenance is without jurisdiction. 16. In view of the above position, this Court is of the view that as per statutory requirement as contemplated in Section 127(2) of Cr.P.C, orders have to be passed in this revision in consequence of a decision of the competent civil Court. It is further observed herein that an order cancelling or modifying the maintenance order passed under this Section, a decision of a competent civil Court is sine qua non. As far as the facts of this case are concerned, a decree of the civil Court, which has become final, stares at the first respondent which enables the Court to cancel the order of maintenance. Hence, as per the above said provision in consequence of the decree, the order under Section 125 passed already by the Court should be cancelled. In such view of this matter, this Court is of the considered opinion that in the presence of the decree of a civil Court, maintenance order has to be cancelled. Hence, it is inevitable for this Court to interfere with the order passed by the Court below, which is liable to be set aside and it is accordingly set aside. The revision deserves to be allowed. 17. In the result, the Criminal Revision Case is allowed. Hence, it is inevitable for this Court to interfere with the order passed by the Court below, which is liable to be set aside and it is accordingly set aside. The revision deserves to be allowed. 17. In the result, the Criminal Revision Case is allowed. C.M.P. No. 1860 of 2009 on the file of the Judicial Magistrate Court, Thiruthuraipoondi is allowed.