Andhra HC (Pre-Telangana)
P. Ataullah And Anr. vs Memunisa Begum And Anr. on 28 November, 1983
ORDER
1. The husband is the petitioner. The respondent wife and the minor daughter filed M.C. No. 95/79 in the Court of the Additional Judicial First Class Magistrate, Adoni for maintenance. The Court ordered Rs. 100/- for the wife and Rs. 25/- for the minor. The husband carried the matter in revision and the same was dismissed by the second Additional Sessions Judge, Kurnool by his order dt. 12-11-1982. Though the maintenance was ordered in the year 1979, the petitioners husband failed to pay the maintenance and therefore the wife and the minor got an application filed under S. 125(3) Cr PC. The learned First Class Magistrate by his order dt. 26-3-1983 directed the petitioner to undergo sentence of imprisonment for 37 weeks, in default of payment of Rs. 4625/- towards the arrears of maintenance. Again the same Magistrate by his order dt. 28-3-1983, which was an application filed by the husband suspended the order of arrest subject to the condition that the petitioner husband deposits an amount of Rs. 2500/- and executes a bond for a sum of Rs. 3000/- Against the order directing the arrest, the present revision is filed.
2. The learned counsel submits that under S. 125(3) Cr PC the Court is not expowered to order arrest without issuing a warrant for levying the amount due as fine. According to the learned counsel without issuing such a warrant, the Court cannot order for arrest. It is also his submission that as per the proviso to S. 125(3) Cr PC, even such a warrant to levy the amount as fine can be issued on an application made to the Court within a period of one year from the date on which it became due. In the instant case, according to the learned counsel, the application is filed only in the month of January 1983 i.e., on 6-1-1983 beyond one year and therefore the order passed by the Court below is illegal. In support of his submission, the learned counsel relies on a judgment of the Orissa High Court in Jagannath v. Purnamashi, . That was a case which arose under S. 488(3), Cr PC. The language of the said provision is the same as in S. 125(3) of the present Code. In that case the learned Judge observed that a warrant under that provision can be issued only within one year. It may not be necessary to consider the legal aspect at great length even assuming that what the Orissa High Court has laid down is correct. The petitioner husband against whom the order was passed in the year 1979 preferred a revision to the Sessions Court and the learned Additional Sessions Judge, Kurnool dismissed the revision only on 12-11-1982. Therefore, the application filed under S. 125(3) Cr PC on 6-1-1983 is within one year. The matter became final only by virtue of the order passed by the learned Second Additional Sessions Judge on 12-11-1982. In this view of the matter, the application viz. Cr.M.P. No. 91/83 in M.C. No. 95/79 on the file of the Additional Judicial First Class Magistrate Adoni is within time. The learned counsel however, submits that in the absence of any stay nothing prevented the respondents from filing an application earlier. But for the purpose of limitation of one year, the Court cannot ignore the fact that the matter was pending by way of a revision and the order of maintenance became final only on the dismissal of the revision on 12-11-1982 by the learned Additional Sessions Judge.
3. The next submission of the learned counsel is that under S. 125(3) in the first instance a warrant to levy the amount as fine should be issued and the sentence of imprisonment can be passed only if the amount remains unpaid after the execution of the warrant. S. 421 Cr PC (1974) provides the procedure for issuing a warrant for levy of fine. In the instant case, no such warrant has been issued. But the order of the learned Magistrate shows that the husband who appeared in the Court in response to a notice issued in Cr.M.P. No. 91/83 admitted that the amount has not been paid and he had also no representation to make. Under these circumstances, no useful purpose would have been served by issuing warrant. In this view of the matter it cannot be said that the order of the lower Court is illegal.
4. It is admitted that during the pendency of this revision, the petitioner deposited Rs. 2,500/- and the same has been withdrawn by the respondents. Therefore, I do not think that this is a fit case where the order of arrest and the imprisonment for 37 weeks should be confirmed in respect of non-payment of the balance. However, the proviso lays down that an application has to be made within one year. That means at least there can be imprisonment in respect of these 12 weeks. Accordingly, the sentence of imprisonment awarded by the lower Court is reduced to 12 weeks. But the same shall be suspended for a period of three months. Meanwhile the petitioner shall deposit the arrears due, failing which the sentence of imprisonment of 12 weeks shall be enforced. On deposit of arrears, the respondents are at liberty to withdraw the amounts without any security. With this modification, the revision is disposed of.
5. Order accordingly.