Jharkhand High Court
Jagarnath Rout vs State Of Jharkhand & Anr on 22 June, 2010
Equivalent citations: 2010 (4) AIR JHAR R 304
IN THE HIGH COURT OF JHARKHAND, RANCHI.
Cr. Rev. No. 671 of 2009
Jagarnath Rout .................................................... Petitioner
Versus
1.The State of Jharkhand
2.Jayanti Devi @ Janti Devi ..................................... Opp. Parties
Coram :- Hon'ble Mr. Justice D.K. Sinha
For the Petitioner :- M/s Kailash Prasad Deo
Girish Mohan Singh
Anand Kr. Sinha
For the O.P. No. No. :- Mr. Vijay Shankar Jha
C.A.V On 11.3.2010 Delivered on 22 -6-2010
ORDER
22-6-2010The instant Criminal Revision is directed against the order impugned dated 21.7.2009 passed in Execution Case No. 1 of 2009 by the Principal Judge, Family Court, Deoghar by which the prayer made by the opposite party No.2 herein for the payment of the arrears of the maintenance amount was granted calling upon the petitioner herein to pay pursuant to an earlier order dated 21.8.2003 in Criminal Misc. Case No. 13 of 1999 in a proceeding under section 125 Code of Criminal Procedure.
2. The prosecution story in short was that the wife- opposite party No.2 had initiated a proceeding under section 125 Cr.P.C. against the petitioner-husband Jagarnath Rout claiming a sum of Rs. 500/- per month as monthly maintenance, however, on her prayer for ad-interim maintenance a sum of Rs. 250/- per month was allowed by order dated 30.8.1999 in Cr.Misc. Case No. 13 of 1999.Upon final adjudication and hearing the parties final order was passed by awarding monthly maintenance to the tune of Rs. 500/- calling upon the petitioner-husband to pay the opposite party No.2 from the date of passing of the final order on 21.8. 2003. When no amount was paid to the opposite party No.2 Jayanti Devi @ Janti Devi by the petitioner after 21.8.2003 she filed an Execution Case No. 1 of 2009 for realization of the outstanding dues under section 125(3) Code of Criminal Procedure from September,2003 upto June 2009 @ Rs. 500/- which was allowed by the impugned order as against the petitioner herein by issuing distress warrant.
3. Mr. K.P. Deo, learned counsel appearing for the petitioner contended that the order impugned recorded by the Principal Judge, Family Court, Deoghar on 21.7.2009 by issuing distress warrant of arrest against the petitioner for realization of 2 outstanding dues to the tune of Rs. 35,000/- was not maintainable either in law or on facts. Law as laid down under section 125(3) Cr.P.C. is a specific that for recovery of such arrears of maintenance amount due for the period one year prior to the date of filing of the application was not maintainable. The proviso to sub- sec.(3) of Section 125 Cr.P.C. puts an embargo on the power of the court to issue any distress warrant of arrest for recovery of amount due unless the application is made to the court within a period of one year from the date on which the amount became due. The learned counsel submitted that a similar view was taken in Bimala Devi Vs. Karna Mulia reported in 1986 CRI.L.J 521. The Single Bench of the Orissa High Court observed:-
"The proviso to sub-sec.(3) of Section 125 of the Code in clear and categorical terms puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the court within a period of one year from the date on which it became due. Therefore, the Magistrate has a duty to find out the date on which the amount became due. Admittedly, the order of the Magistrate in this case granting maintenance is dt. 26.4.1978. The matter remained pending in revision before the learned Sessions Judge for more than a year, but all the same it cannot be said that the amount in question was not due during that period. It is conceded before me that the learned Sessions Judge had not passed any order staying the operation of the Magistrate's order. In that view of the matter, it is not possible to hold that the amount in question did not become due during the period the matter was pending in revision before the learned Sessions Judge."
4. Mr. Deo further submitted that in Sardar Beg Sahib Vs. Sidhani Bi reported in 1987 CRI L.J. 1779 the Single Bench of the Madras High Court observed :-
"The relevant provision of law in this matter viz, the first proviso to section 125(3) Cr.P.C. is as follows :-
"Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due"
Therefore, the law is not to the effect that no warrant can be issued for an amount of arrears of maintenance for more than 12 months, but the application should be made within a period of one year from the date on 3 which it became due. Whatever amount has become due before one year prior to the date of the application cannot be recovered by way of warrant. In this case, the maintenance became due on 19.10.1978.
The first application was filed on 24.2.1981.The husband though properly given notice, was not present, and no representation was made. It is not clear whether there was any stay in the course of the appeal postponing the due date.
Therefore, it has to be concluded that the maintenance became due from 19.10. 1978.
When the wife first applied in Cr. M.P. 383 of 1981 on 24.2.1981, she could have applied for recovering maintenance only from 24.2.1980. It appears that the husband has, by way of paying an amount of Rs.
600, managed to see that that application was kept pending for non prosecution. In the second application numbered as Cr.M.P. 3700 of 1982, the wife has stated that after the issue of distress warrant in Cr. M.P. 383 of 1981 a sum of Rs. 400/- has been paid in addition to the sum of Rs. 200/-
already paid by him. Therefore, in the second application also, it was open to the wife to seek for the issuance of a warrant to recover the amount of maintenance due only from 24.2.1980. But for the reason that the warrant states that the amount of arrears of maintenance is from 19.10.1978 the warrant is not void, but the warrant has to be restricted to the recovery of maintenance from 24.2.1980.
5. The petitioner-husband had appeared in execution case No. 1 of 2009 and he in his causes shown explained that execution case for recovery of amount due beyond the period of one year of the final order passed under section 125 Cr.P.C. was not maintainable. Mr. Deo advancing his argument contended that the order impugned in a proceeding under section 125 Cr.P.C. was passed on 21.8.2003 in Cr. Misc. No. 13 of 1999 and the Execution Case No. 1 of 2009 was filed on 3.1.2009 under section 125(3) Cr.P.C., therefore, under the provision of law as well as proposition of law referred to herein before, the O.P. No.2 was not entitled for recovery of arrears of maintenance amount beyond the period of one year preceding the filing of the execution case, i.e. she was entitled for arrears only from 3.1.2008 in view of the fact that the execution case was fled on 3.1.2009, as such, issuance of distress warrant for realization of Rs. 35,000/- of outstanding dues of maintenance from the petitioner was illegal and cannot be sustained under law as such, the order impugned needs interference and the same may be set aside.
46. Heard the learned counsel for the O.P. No.2
7. Section 125(3) of Cr.P.C. lays down procedure for compliance of the order of the Magistrate passed allowing maintenance under section 125 Cr.P.C which speaks :-
"If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such persons, for the whole or any part of each month's{allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made.
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due."
8. In the instant case final order was passed in the proceeding under section 125 Cr.P.C. on 21.8.2003 in Cr. Misc. Case No. 13 of 1999 directing the petitioner-husband to pay monthly maintenance amount @Rs.500/- to the wife-opposite party No.2 since the date of the order i.e. 21.8.2003. The O.P.No.2 alleged in the Execution Case that the petitioner in utter violation of Judicial order did not pay single farthing till final order was passed in Execution case No.1 of 2009 on 21.7.2009. It was explained by the opposite party No.2 in the Execution Case that she was unable to maintain herself as she was having no source of income for her livelihood and that she was on the verge of starvation. .The total outstanding amount of maintenance that was shown to be due was Rs. 32,000/- @ Rs. 500/- per month from the date of passing of the order on 21.8.2003, in the proceeding under section 125 Cr.P.C. till filing of the Execution Case which was updated to the tune of Rs,. 35,000/- till June 2009. The petitioner after receipt of the notice resisted the execution case by adverting that realization of outstanding dues were barred by limitation as the execution case was filed by the wife-opposite party No.2 after six years of the due date.
9. The learned Principal Judge explained in his order that after final order was passed in Cr. Misc. No. 13 of 1999 on 21.8.2003 by the Judicial Magistrate the case record was transferred to the Principal Judge , Family Court, Dumka and the record was placed before the said court for the first time after two 5 years on 12.7.2005 However, in the meantime, the petitioner filed a Cr. Revision No. 91 of 1999 in the court of Sessions Judge, Deoghar in which Lower court record was called for and the criminal Revision was finally heard by the Additional Sessions Judge FTC-II and was dismissed. The order passed in Cr. Rev. No. 91 of 1999 was communicated by the court vide memo No. 86 dated 25.2.2008 and the same was received by the Principal Judge, Family Court, Deoghar and the wife-opposite party No.2 having been aggrieved for non-compliance of the order, filed an Execution case on 3.1.2009 for execution of the order passed on 21.8.2003 in a proceeding under section 125 of Cr.P.C.. The learned Principal Judge found that the husband-petitioner though had been paying the ad interim maintenance @ Rs. 250/- per month regularly but stopped payment of any amount to the opposite party no.2 after final order was passed in the proceeding. The conduct of the petitioner clearly indicated that he knowingly and willingly disobeyed the order of the court by making default in payment. The Principal Judge further observed that after passing the order of granting maintenance, the record moved before different courts and lastly the revision that was preferred by the petitioner was dismissed by the Addl. Sessions Judge FTC-II and only thereafter the O.P. No.2 could be able to file the execution case, as such, execution petition filed on 3.1.2009 was within time. I find that the learned Principal Judge, Family Court, Deoghar misconceived the provision of law by allowing the execution case and passing the order for issuance of distress warrant against the petitioner for realization of the outstanding dues of maintenance to the tune of Rs. 35,000/- from the date of final order recorded in the proceeding under section 125 of Cr.P.C. According to law as laid down under the proviso of Section 125(3) of Cr.P.C. read with proposition of law as referred to herein before, the Execution Case for arrears of outstanding dues was maintainable only for the period of preceding one year of its filing and not for the entire period from the date final order passed in the proceeding under section 125 Cr.P.C. The amount of maintenance though was due since very date of the final order recorded on 21.8.2003 but the Execution Case under section 125(3) Cr.P.C. could be filed only on 21.8.2009 for realization of the arrears , as such as per law laid down she was entitled for dues only from 21.7.2008 till realization. I, therefore, find that the learned Principal Judge, Family Court, Deoghar grossly erred without appreciation of the provision of law by directing for issuance of distress warrant against the petitioner 6 for realization of the outstanding dues to the tune of Rs. 35,000/- since the date of final order passed on 21.8.2003 whereas recovery of outstanding dues under the execution case was maintainable only from 3rd day of January,2008 till payment @ Rs. 500/- per month due to the O.P. No.2 herein with the penal interest @ 7% for the reasons that the petitioner did not pay a single farthing to the O.P. No.2 willfully thereby flouting the order of the court.
10. With the modification in the order impugned dated 21.7.2009 passed by the Principal Judge, Family Court Deoghar in Execution case no. 1 of 2009 in the manner indicated above this Criminal Revision is dismissed.
(D.K.Sinha, J) SD /AFR