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LEELABAI Vs. KAILASH CHANDRA

Judgement

Court: MADHYA PRADESH HIGH COURT

Bench: JUSTICE S.L. Kochar

LEELABAI Vs. KAILASH CHANDRA On 16 May 2002

Law Point:
Application for recovery of Maintenance amount to be made within one year from date on which it became due.

 

 

JUDGEMENT

 

This revision has been preferred by the applicant/wife against the order dated 2nd July, 1999 passed by XV Additional District Judge, Indore, Criminal Revision No. 49/1998 arising out of the order dated 26th November, 1998, passed by the learned Judicial Magistrate, First Class, Indore in Misc. Criminal Case No. 13/1998.

2. The essential facts succinctly are mentioned for disposal of this revision as follows :

On the application filed under Section 125 of the Code of Criminal Procedure (for short, “the Code”) by the applicant/wife in Misc. Criminal Case No. 457/1998, an order dated 15th October, 1992 for grant of maintenance @ 400/- per month from the date of the order, was passed wherein litigation cost of Rs. 500/- has also been imposed. Pursuant to the aforesaid order, on 29th December, 1994, an application for recovery was filed. On 10th January, 1994, non-applicant/husband deposited Rs. 5,700/vide receipt No. 43 book No. 6093 in the CCD A/c. This amount was for the period from 15th October, 1992 to 14th October, 1993 including the cost of litigation as Rs. 500/-.

3. Applicant/wife, aggrieved by the order dated 15th October, 1992, granting initial amount of maintenance, filed a revision praying for grant of maintenance amount from the date of application. The said Criminal Revision No. 12/1993 was allowed in favour of the applicant by order dated 27th April, 1994 and the learned Revisional Court ordered for payment of maintenance from the date of filing of the application i.e. 1st July, 1985. Thereafter, the applicant submitted an application on 2nd May, 1995 for amendment in the application for recovery filed on 29th December, 1992. This amendment was allowed by the learned Trial Court. After this amendment, recovery warrant was issued for the amount due from 1st July, 1985 @ Rs. 800/- per month.

4. The non-applicant/husband appeared before the Trial Court and raised an objection that in pursuant to order dated 27th April, 1994, passed by II Additional District Judge allowing the prayer for granting maintenance from the date of application i.e. 1st July, 1985 at the rate of Rs. 400/- per month, the applicant/wife should have filed an application within a period of one year from the date of this order but she did not file any application for recovery of arrears of maintenance amount within one year. Therefore, the order of the learned Magistrate for issuance of recovery after allowing the amendment application in the original application dated 29.12.1992, was bad in law because the amendment application was filed after one year of the passing of the order dated 27th April, 1994. The learned Trial Court has rejected the objection of the non-applicant against which he went up in revision and his prayer was allowed by the impugned order. Learned Revisional Court has held that filing of application dated 2nd May, 1995 for amendment in the original application for the recovery of maintenance amount from 1st July, 1985 as per order dated 27th April, 1994 passed in revision, was barred by limitation as prescribed under Section 125(3) of the Code. This order has been challenged. The Revisional Court has also held that on 10th January, 1994, non-applicant had already deposited the amount of Rs. 5,700/-, which was due, therefore, on 10th January, 1994, the application filed by the applicant on 29th December, 1992 under Section 128 of the Code, was automatically disposed of. In the original application, amendment application dated 2nd May, 1995 filed by the wife was not maintainable because of two reasons. Firstly, the original application was not pending and secondly, amendment application dated 2nd May, 1995 was filed after one year from the date of passing of the order dated 27th April, 1994 in Criminal Revision No. 12/1993 granting maintenance from the date of filing of the application.

5. Learned Counsel for the applicant relied on the decisions of this Court passed in Lalchand v. Hemkant, I (1986) MPWN 144, and Nanhibai & Ors. v. Netram, II (2001) DMC 387 (DB)=2001 Cr.LJ 4325. The law laid down in the aforesaid decision that interpretation of first proviso to Section 125(3) has to be in such a manner that it does not multiply proceedings and once the machinery is set in motion when the amount becomes due and payable within limitation, recovery for amount falling due in future can be ordered. Multiplicity of the proceedings is not conducive to the social order and person should not be dragged or forced unnecessarily in the procedural wrangle. In the present case the facts are altogether different in which Section 125, Sub-section 3 prescribing limitation is required to be considered, in view of the order passed by the Revisional Court on 27th April, 1994 in Criminal Revision No. 12/1993. In this order learned Revisional Court has directed for payment of maintenance from the date of application i.e. 1st July, 1985 and the applicant should have filed either separate application within one year from this order or the application seeking amendment in the application filed under Section 128 of the Code for recovery of amount of maintenance in pursuance of the order dated 15th October, 1992. The ratio of both the aforesaid decisions is that once the application for recovery of maintenance amount is filed then within every one year the application is not required to be filed. One application is sufficient for passing the order for the recovery of maintenance amount falling due in future.

6. In the present case, the factual and legal position are altogether different i.e. for the amount of arrears cause of action arose on 27th April, 1995 and from that date within one year the applicant should have filed an application for arrears of maintenance amount as per order dated 27th April, 1995 by which learned Revisional Court has ordered for grant of maintenance from 1st July, 1985.

7. For resolving the controversy, it would be apt to reproduce relevant Provision of Sub-section (3) of Section 125 of the Code.

“Section 125. Order for maintenance of wives, children and parents………………

(1) ………………………………………………………………………………………………………

(2)……………………………………………………………………………………………………….

(3) 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 fines, and may sentence such person, for the whole or any part of each month’s allowance 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 :

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

8. The object of the proceedings of maintenance case to prevent vagrancy and destitution by compelling a person to support his wife or children or parents unable to support themselves. In the case of Nanhi Bai (supra), Court has held that “For the purpose of consideration of limitation, the effective date of maintenance falling due can only be determined on the facts and orders passed in each and every case”. The object of prescribing the period of limitation of one year for filing the application for recovery of maintenance amount within a period of one year from the date on which it became due, is to give safeguard and a protection to the husband from the payment of accumulated huge amount, which he may not be able to pay. The another object is that if the wife or children or parents are really in need of maintenance amount, they will file an application within a period of one year from the date on which it became due. If they are filing the application after lapse of a long time, it would indicate that they were not in real need of the said amount.

9. In the present case, learned Revisional Court has erred in quashing the whole proceedings of recovery pending in Misc. Criminal Case No. 13/1998 which was registered on the basis of the application filed on 29th December, 1992 by the applicant/wife. After filing of this application, the applicant/wife was not required to file any further application for the amount which became due every succeeding month in future and for the purpose of recovery of the said amount, this Misc. Criminal Case No. 13/1998, shall survive, in which husband/non-applicant is required to make the payment at the rate of Rs. 400/- per month. The husband deposited the amount of Rs. 5,700/- in the CCD A/c and on that date the Trial Court was not apprised about depositing of the amount in CCD A/c. Even the wife/applicant was not knowing this fact of deposit of the amount. Therefore, the question of termination of the proceedings initiated on the basis of the application dated 29th December, 1992 does not arise and on the basis of the same application, the amount claimed and the amount falling due in future, would be recoverable and for this purpose this application will survive.

10. So far as question of allowing the application for amendment for recovery of the amount payable from the date of application, which was filed after one year, it should not have been entertained. The order was passed in Criminal Revision No. 12/1993 on 27th April, 1994 whereas the application was filed on 2nd May, 1995 for amendment in the original application for recovery dated 29th December, 1992. This was certainly filed after expiry of period of one year because this application was for the previous amount and not for the amount falling due in future. If at any time, any application is entertained, for the purpose of recovery of maintenance amount, which was accumulated, the provision under Section 125(3) Proviso (1) would become redundant. Because of laxity and negligence by the wife, the husband cannot be punished and, therefore, entitled for protection under Section 125 Sub-section (3) Provision (1) of the Code. Therefore, this revision is allowed in part. The order closing the recovery proceedings in Misc. Criminal Case No. 13/1998 is set aside and the same will continue. The wife/applicant is not required to file any further application for the purpose of recovery of the amount which will falling due in every succeeding month and the husband is also required to pay the maintenance amount in this recovery proceedings in every month. Failure to which, Court will proceed in accordance with law by issuing warrant of arrest but the order setting aside the application for amendment dated 2nd May, 1995 for recovery of amount from 1st July, 1985 is upheld because the same was filed after expiry of the period of one year.

11. Consequently, in the terms indicated above, this revision stand partly allowed.

Revision partly allowed.

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