Karnataka High Court
Lakshman Rao Sakharam Survase vs Smt. Mangala W/O Lakshman Rao Survase on 7 December, 1990
Equivalent citations: 1991CRILJ1980, ILR1991KAR637, 1990(3)KARLJ346
ORDER
1. The short point that falls for determination in this Criminal Petition filed under Section 482, Cr.P.C. is whether in an application filed under section (3) of S. 125, Cr.P.C. by a person awarded maintenance under sub-section (1) of S. 125, Cr.P.C., no warrant shall be issued by the Magistrate for the recovery of any amount beyond the period of one year prior to the date on which it became due by virtue of the first proviso to S. 125(3), Cr.P.C.
2. Petitioner is the husband of the respondent. Respondent filed an application under section 125(1) Cr.P.C. in the Court of the J.M.F.C.II Court, Bijapur, (for short 'the Magistrate') in Cr. Misc. case No. 97/81 for recovery of maintenance from the petitioner. After contest, respondent's petition was allowed and the petitioner was directed to pay maintenance to the respondent at Rs. 200/per month from the date of her application by order dated 18-9-87 passed in Cr. Misc. Case No. 97/81.
3. Feeling aggrieved by that order, petitioner filed Cr. Misc. Rev. Petn. No. 183/87 in the Court of the Sessions Judge, Bijapur and obtained stay of the order of the learned Magistrate dated 18-9-87. The said Revision Petition was dismissed on 15-2-88. Thereafter, respondent filed an application under section 128, Cr.P.C. in the Court of the learned Magistrate in Cr. Misc. No. 170/88 for recovery of arrears of maintenance due to her by the petitioner for the period from 23-9-81 to 23-10-88 amounting to Rs. 17,100/-. Petitioner contended in the said case that the respondent cannot claim and recover maintenance from him for any period beyond one year from the date of her application by virtue of the proviso to S. 125(3), Cr.P.C. Learned Magistrate negatived that contention by order dated 20-7-1889.
4. Feeling aggrieved by that order, petitioner filed a Revision under Section 397, Cr.P.C. before the Sessions Judge in Cr. Rev. No. 298/89. By order dated 16-3-90, the learned Sessions Judge dismissed the Revision Petition and confirmed the order of the learned Magistrate on 20-7-89. It is against the said concurrent orders of the two Courts below that the petitioner has filed this Criminal Petition under section 482, Cr.P.C. contending that under the first proviso to S. 125(3), Cr.P.C. no order for recovery of maintenance could be passed if an application is filed after a lapse of one year and, therefore, the Courts below have committed an error in holding that the right to file an application for recovery of alleged arrears of maintenance arose only on 6-7-89 when this Court dismissed the petition filed by the petitioner against the maintenance order of the learned Magistrate confirmed by the learned Sessions Judge in revision.
5. The same contention was strenuously urged by Sri. M. Mahabaleshwar Goud, learned counsel for the petitioner by placing reliance on one decision of the Orissa High Court and another decision of the Rajasthan High Court in Jagannath Patra v. Purnamashi, and Govind Sahai v. Prem Devi, 1988 Cr. LJ 638.
6. On the other hand, Sri Mohan Shanthangoudar, learned counsel for the respondent, argued that the present petition filed under section 482, Cr.P.C. is not maintainable as it is virtually a second Revision Petition filed against the order of the learned Sessions Judge dismissing the petitioner's Revision Petition by labelling it as filed under section 482, Cr.P.C. He placed reliance in support of his contention on a recent decision of the Supreme Court in Rajan Kumar Machandha v. State of Karnataka, 1990 SC cases (Cri) 537; He also contended that the maintenance order is sought to be executed by the respondent by filing a petition under section 128, Cr.P.C. and not under section 125 Cr.P.C. and even otherwise, the application filed by the respondent is in time as the maintenance order became final only when the Revision Petition of the petitioner was dismissed by the learned Sessions Judge and during pendency of which stay of the maintenance order granted by the learned Sessions Judge was in force and the Revisional order of the learned Sessions Judge was eventually confirmed by this Court by dismissing the Criminal Petition of the petitioner on 6-7-89.
7. In my opinion, it is quite unnecessary to go into the consideration of the maintainability of the petition urged by Sri. Mohan Shanthagoudar as this Criminal Petition is liable to be dismissed on the second point canvassed by him.
8. It is no doubt held by the Orissa High Court in Jagannath Patra's case, mentioned above, on a consideration of the second proviso to S. 488(3) of the old Cr.P.C. that warrant cannot be issued for recovery of the amount of arrears of maintenance falling in arrears beyond one year from the date of of application. The relevant observations on which reliance was placed by Sri Mahabaleshwar Goud in the decision of Govind Sahai's case, 1988 Cr. LJ 638 are mentioned in para 6 of the said decision. It reads thus (at page 640; Cri. LJ 1988 :
"However, there is some substance in the second contention of the learned counsel for the petitioner. Proviso to S. 125(3) expressly provides that no warrant shall be issued for the recovery of any amount due under section 125 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. It may be mentioned here that the Judicial Magistrate, Malpura by his order dated Nov. 22, 1984 had granted maintenance to the nonpetitioner for herself and for the daughter with retrospective effect i.e., with effect from March 21, 1984 when the non-petitioner had made the application for maintenance under Section 125(1) of the Code. The arrears of maintenance from March 21, 1984 to Nov. 22, 1984 became due on Nov. 22, 1984 when the Judicial Magistrate passed the order allowing maintenance. The application under section 125(3) of the Code was made by the non-petitioner before the Judicial Magistrate on Dec. 12, 1985. This application was clearly beyond one year from the date on which the arrears upto Nov. 20, 1984 could be issued by the Magistrate. He could only issue warrant for the levy of the maintenance amount which had become due with effect from Dec. 21, 1984 because only in that respect the application of the non-petitioner presented on Dec. 12, 1985 was within limitation".
stay of maintenance order by the Revisional Court whereas, in the instant case, the petitioner had obtained stay of the learned Magistrate's order in the Revision Petition filed by him and the said stay became vacated when his Revision Petition was dismissed on 15-2-1988. It is needless to say that during the said period the respondent could not have successfully maintained an application under section 125(3), Cr.P.C. for executing the maintenance order as it would have been dismissed by the learned Magistrate on the ground that the maintenance order had been stayed by the Revisional Court. Therefore, the above mentioned two decisions on which reliance was placed by Sri Mahabaleshwar Goud are not of any assistance to the petitioner. On the other hand, it is held by the Andhra Pradesh High Court in P. Ataullah v. Memunisa Begum 1984 Cr LJ 1522 that application under section 125(3) by wife within one year from the date of dismissal of revision would be within time. It is also observed in B. B. Mitra's Code of Criminal Procedure, 16th Edition, at page 464-465 as under :
"The proviso was clearly enacted to prevent the person, in whose favour an order for maintenance was made, from being negligent and allowing arrears to pile up until recovery became hardship or an impossibility".
In this connection, I may usefully refer to a decision of the Allahabad High Court in Gurucharan v. Smt. Chhidana, 1981 All LJ 547; in which the specific point arising for consideration in this petition is considered and it is held that the period of one year mentioned in the first proviso to S. 125(3) for filing an application starts from the date of vacation of the stay order and principle of merger of the learned Magistrate's order in the final order of the High Court applies. The facts of that case are that the learned Magistrate had passed an order granting maintenance to the wife on 30-9-72. Husband filed a Revision against that order and obtained stay of the order of the Magistrate pending disposal of his Revision Petition. The revision petition was dismissed by the Sessions Judge on 6-2-1973 and another Revision filed by the husband against the order of the Sessions Judge was dismissed by the High Court on 25-1-77. A stay order had been issued by the High Court in the second Revision on 13-473. It is, therefore, held that the application filed by the wife claiming realisation of maintenance within one year of the order of the High Court was well within time. Meaning of the words "within one year from the date on which it became due" occuring in the first proviso to S. 125(3), Cr.P.C. is also considered by the Orissa High Court in Bimal Devi v. Karna Mulia, 1986 Cr LJ 521 in which reference is made to the above mentioned decision in Jagannath Patra's case cited by Sri Mahabaleshwar Goud and it is held that the proviso to sub-section (3) of S. 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, and, therefore, the Magistrate has a duty to find out the date on which the amount became due. In the said case, it is further observed that the order of the Magistrate granting maintenance to the wife was pending before the Sessions Judge for more than a year but the Sessions Judge had not passed any order staying the operation of the Magistrate's order and in that view of the matter, it could not be said that the amount in question did not become due during the period that matter was pending before the Session Judge in revision. In my opinion, the clear implication of the said observations is that if the Sessions Judge had passed an order of stay of the operation of the Magistrate's order during the pendency of the Revision Petition, the starting point of one year could have been from the date of dismissal order of the learned Sessions Judge. That is exactly the situation in the instant case inasmuch as the petitioner has obtained an order of stay of the learned Magistrate's order during the pendency of his Revision Petition which was eventually dismissed on 15-2-1988 as already mentioned above. Further, petitioner had filed a Criminal Petition in this Court against the order of dismissal of his Revision Petition by the learned Sessions Judge on 15-2-1988 and the said petition was dismissed by this Court on 6-7-1989.
9. Therefore, I am of the opinion that it is not open to the petitioner to contend that the application filed by the respondent more than one year after the learned Magistrate's order dated 18-9-1987 granting maintenance to her is barred by limitation. It, therefore, follows that the view taken by the two Courts below is perfectly correct and it is not open to the petitioner to question such an order by invoking to his aid the provisions of S. 482, Cr.P.C. If I may say so, it is the petitioner who is abusing the process of the Court and not the respondent. It, therefore, follows that this petition is liable to be dismissed.
10. In the result, the Criminal Petition is dismissed.
11. Petition dismissed.