Court: UTTARAKHAND HIGH COURT
Bench: JUSTICEB.C. Kandpal
LAXMAN SINGH Vs. STATE OF UTTARANCHAL & ANR. On 12 February 2008
Law Point: Application for recovery of maintenance allowance beyond 12 months is barred under proviso to Section 125(3), Cr.P.C.
By way of this petition under Section 482 of Cr.P.C. the petitioner has challenged the judgment and order dated 24.11.2003, passed by Special Judicial Magistrate, Didihat, District Pithoragarh in Criminal Case No. 23 of 2003, Smt. Durga Devi v. Laxman Singh as well as judgment and order dated 19.7.2004 passed by Sessions Judge, Pithoragarh in Criminal Revision No. 17 of 2003, Laxman Singh v. Smt. Durga Devi.
2. Brief facts of the case are that the petitioner is the husband of respondent No. 2. An application under Section 125 of Cr.P.C. was filed by respondent No.2 on 10.6.1992 before Judicial Magistrate 1st, Didihat, District Pithoragarh, for maintenance. The learned Magistrate allowed the application vide order dated 16.4.1998 and awarded the maintenance of Rs. 300 per month to respondent No. 2. As the petitioner could not make the payment of certain amount of maintenance to respondent No. 2, therefore, respondent No. 2 moved an application under Section 125 (3) of Cr.P.C. on 5.12.2000 in the Court of Judicial Magistrate, Didihat, District Pithoragarh for recovery of Rs. 30,300. This application was allowed vide order dated 24.11.2003 by the Judicial Magistrate and an order for recovery of a sum of Rs. 27,300 was passed. The petitioner preferred a revision against the aforesaid order and the Revisional Court partly allowed the revision directing therein that respondent No. 2 shall be entitled for a sum of Rs. 21,670 from the petitioner and failing which the petitioner shall have to go for simple imprisonment for a period of one year.
3. Feeling aggrieved by the aforesaid both the orders, the petitioner has preferred this petition before this Court.
4. Heard Mr. Lokendra Dobhal, learned Counsel for the petitioner, learned A.G.A. for respondent No. 1 and perused the record.
5. None has appeared on behalf of respondent No. 2 Smt. Durga Devi in spite of sufficient service of notice upon her.
6. Learned Counsel for the petitioner has invited my attention
towards the provisions of Section 125 of Cr.P.C. and has submitted that in view of Sub-section (3) of Section 125 of Cr.P.C., the application for recovery of arrear had to be moved within a period of one year from the date of the order when the amount of maintenance became due. He has submitted that period of limitation for filing the application under Section 125(3), Cr.P.C. was upto 16th April, 1999 as the order for payment of maintenance allowance was passed on 16.4.1998, therefore, the application filed by respondent No. 2 on 5.12.2000 was clearly time barred in view of the provisions of Section 125(3) of Cr.P.C.
7. Learned Counsel for the petitioner has cited two decisions of Allahabad High Court in support of his contention:
(i) Mohd. Idrish Khan v. Akila Khatoon & Ors., reported in 1994 (31) All.CC 808.
(ii) Hifazat Husain v. State of U.P. & Ors., reported in 1998 (2) All.CC 866.
8. Sub-section (3) of Section 125 of Cr.P.C. lays down “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 person, for the whole or any part of each month’s allowance remaining unpaid for a term which may extend to one month or until payment if sooner made”.
9. A proviso has been added to this sub-section which 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.
10. From the aforesaid, it is clear that the remedy to respondent No. 2, who is the wife of the petitioner, for releasing the maintenance allowance which has become 12 months old is barred under this provision. Therefore, in view of the provisions of Section 125 (3) of Cr.P.C., the petitioner cannot be coerced to pay maintenance allowance for which the wife is not entitled to get on account of her inaction by taking recourse to his detention in prison. Both the Courts below were not justified in issuing the warrant of arrest for the recovery of the maintenance allowance which had become time barred.
11. Accordingly, the judgment and order dated 24.11.2003, passed by Special Judicial Magistrate, Didihat, District Pithoragarh in Criminal Case No. 23 of 2003, Smt. Durga Devi v. Laxman Singh as well as judgment and order dated 19.7.2004 passed by Sessions Judge, Pithoragarh in Criminal Revision No. 17 of 2003 Laxman Singh v. Smt. Durga Devi , are set aside.
12. This petition is disposed of with the following direction:
The Court concerned will see that recovery of the sum legally due is to be made only in terms of limits indicated in Section 125(3) of Cr.P.C. and no recovery warrant is to be sent for more than 12 months at a time.