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SARADA MAJHI Vs. SANJAYA MAJHI

Judgement

 
Court:ORISSA HIGH COURT

Bench: JUSTICE P.K. Tripathy

SARADA MAJHI Vs. SANJAYA MAJHI On 5 November 2001

Law Point:
Maintenance : Realisation of Arrears : In the Name of Liberal Interpretation Period of Limitation Cannot be Ignored or Bypassed.

 

 

JUDGEMENT

 

Order dated 18.11.1999 of the S.D.J.M., Angul in Crl. Misc. Case No. 51 of 1998 is under challenge in this application under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘the Code’).

2. A brief sketch of the relevant facts and circumstances is relevant to consider the grievance of the petitioner. In that respect petitioner’s contention is that she is the wife of the opposite party. When the opposite party refused to maintain her, she filed an application under Section 125 of the Code registered as Criminal Misc. Case No. 11 of 1991 in the Court of S.D.J.M., Angul. On 13.1.1994 that application was allowed by granting her maintenance @ Rs. 500/- per month making it payable from the date of institution of the proceeding i.e., 25.1.1991. Petitioner filed application for realisation of the arrear maintenance, registered as Crl. Misc. Case No. 75 of 1994. In that application she claimed for realisation of arrear maintenance from January, 1991 to January, 1994. In the meantime opposite party filed Crl. Revision No. 24 of 1994 in the Court of Sessions Judge, Dhenkanal. Learned Sessions Judge directed the opposite party to pay Rs. 4,000/- to the petitioner. On 2.7.1995 learned Sessions Judge dismissed that criminal revision and as against that the opposite party filed an application under Section 482 of the Code in this Court, registered as Crl. Misc. Case No. 2651 of 1995. As an interim measure, this Court directed the opposite party to pay monthly maintenance @ Rs. 300/-. Accordingly the opposite party paid Rs. 5,100/- covering a period of 17 months from August, 1996 to December, 1997, and thereafter also paid maintenance @ Rs. 300/- till July, 1998. On 8.3.1998 the application under Section 482 of the Code was disposed of by reducing the quantum of maintenance to Rs. 450/- per month and as stated by the petitioner and not disputed by the opposite party in that respect, the following order was passed by this Court :

“Considering the materials regarding scale of pay receivable by the petitioner, I reduce the quantum of maintenance to Rs. 450/- per month. If arrear of maintenance have not been paid, same shall be paid within three months. Any amount payable after taking note of the interim orders passed by this Court shall be paid within the aforesaid period.”

3. Thereafter petitioner filed an application under Section 125(3) of the Code claiming for realisation of the arrear maintenance when the opposite party failed to pay the same in accordance with the above quoted direction of this Court. That execution proceeding was levied for realisation of Rs. 30,500/-. The opposite party entered appearance and agreed to pay Rs. 19,400/- and refused to pay the monthly maintenance from July, 1994 to December, 1995 on the ground that prayer for recovery of that amount if barred by the first proviso to Sub-section (3) of Section 125 of the Code for not levying the execution within one year from the date on which such maintenance became due. Learned Magistrate allowed that objection of the opposite party and refused to issue distress warrant against the opposite party with respect to the maintenance for the aforesaid period of 18 months. It appears from the impugned order that the learned Magistrate declined to issue distress warrant in view of the ratio in the case of Bimala Dei v. Karna Mulia, 60 (1985) Con.LT 224 and Upendra Mohapatra v. Smt. Kanchabala Mohapatra & Ors., (1995) 9 OCR 15.

4. In the impugned order, learned S.D.J.M. has noted that :
“Admittedly during pendency of the revision in the Sessions Court or pendency of misc. case in the Hon’ble High Court, no stay order for operation of the order of the S.D.J.M. directing the opposite party to pay the maintenance amount was passed. It is also admitted that no execution case was filed for realisation of the arrear maintenance for the period from July, 1994 to December, 1995, within one year from the date the amount for the above said period became due.”

5. As it appears, learned S.D.J.M. could not properly appreciate the facts and circumstances involved in the case inasmuch as while admitting the revision for hearing, learned Sessions Judge passed an order for payment of Rs. 4,000/- towards the maintenance to the petitioner. Even without passing stay order that order means and signifies that the Revisional Court wanted the order of the S.D.J.M., not to be executed so long as the revision was pending adjudication. Similarly, when this Court entertained the application under Section 482, Cr.P.C. and passed an interim order directing for payment of maintenance @ Rs. 300/- per month, it was not necessary for this Court to pass a further order for maintenance unless it had the desire to keep the impugned order of maintenance suspended till hearing both the parties. Under such circumstance, even if a specific stay order was not passed staying operation of the order of maintenance granted by the S.D.J.M. then also from the very nature of the orders passed by the Revisional Court and this Court in the said Crl. Misc. Case clearly imply that the order of maintenance granted by the S.D.J.M. was desired to be suspended until adjudication of such proceedings. Apart from that, as quoted above, at the time of disposal of the Crl. Misc. Case, this Court has clearly stated for payment of all the arrear maintenance while reducing the monthly maintenance to Rs. 450/-. Therefore, the order of the S.D.J.M. and that of the Sessions Judge merged in the order of this Court and it was decided by this Court that the petitioner is entitled to monthly maintenance @ Rs. 450/-. Therefore, after such adjudication and because of the aforesaid circumstance, the petitioner is entitled to levy the execution for the entire period. The position of law, as noted by the Magistrate from the above cited decision, is clear that in the name of liberal interpretation the period of limitation as provided in the first proviso to Sub-section (3) of Section 125, cannot be ignored or bypassed, but that ratio under the aforesaid circumstances has no relevancy so far as the present case is concerned.

6. Because of the aforesaid facts and circumstances this Court finds that learned S.D.J.M. has unreasonably refused to take steps for realisation of the arrear maintenance for the aforesaid 18 months though the opposite party is legally bound to make payment of the same. It be indicated here that petitioner is entitled to get maintenance @ Rs. 450/- per month with effect from 15.1.1991. Therefore, any amount paid to her after institution of the proceeding in the Court of S.D.J.M., Angul, till date be appropriately calculated and adjusted from the amount which has been claimed by the petitioner, and the opposite party is directed to make payment of the balance amount to the petitioner within a period of three months either in lumpsum or in instalments, failing which learned S.D.J.M. shall issue process in accordance with law for realisation of the said dues.

The Criminal Misc. Case is accordingly allowed.

Crl. Misc. Case allowed.

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