Court: MADHYA PRADESH HIGH COURT
Bench: JUSTICE Bhawani Singh, CJ. & Arun Mishra
NANHI BAi Vs. NETRAM On 31 March 2001
Wife is Adultrous, Maintenance Denied to Her but Husband Liable of Maintaining Children.
Learned Single Judge Mr. Justice S.K. Dubey (as he then was) has referred the instant revision to Larger Bench, in order to decide the question whether the application filed for recovery of the amount of previous one year under Section 125(3) of the Code of Criminal Procedure, 1973 can continue for recovery of the further amount also and whether it is necessary to file separate application/applications for the amount falling due in future during the pendency of the said proceedings. As learned Single Judge has referred the entire revision, we are deciding the same after hearing the parties on merits.
2. Learned Single Judge found conflict in the judicial pronouncements of this Court in the case of Loonchand v. Hemkanta, Criminal Revision No. 334 of 1985, decided on 5.3.1986 (1986 (1) MPWN (SN) 144), decided by Mr. Justice K.L. Shrivastava, learned Single Judge and in the case of Vimal Kumar v. Smt. Siya Bai, Criminal Revision No. 92/1991 (J) decided on 28.4.1993 by Mr. Justice D.K. Jain (as he then was) (1993) 2 MPWN 141. Though the learned Single Judge has expressed his agreement with the view taken in the case of Loonchand v. Hemkanta (supra), however, referred the matter to the Larger Bench in view of the contrary view taken in the case of Vimal Kumar v. Smt. Siya Bai (supra). The learned Single Judge referred the matter to the Larger Bench, considering it to be of general importance and day-to-day recurrence. That is how the matter has travelled to us for resolving the controversy.
3. The factual matrix of the case lies in a narrow compass. The petitioners Nanhi Bai and her 2 minor children applied under Section 125, Cr.P.C. and an order was passed on 14.3.1991 granting maintenance of Rs. 200/- per month to the wife (petitioner No. 1) and Rs. 100/- each to the two minor children (petitioner Nos. 2 and 3), total Rs. 400/- per month, by Judicial Magistrate First Class, Sagar in Misc. Criminal Case No. 231/1989, against the respondent, which order attained finality.
4. On 22.12.1992, the petitioners i.e. wife and the two minor children filed an application under Section 125(3), Criminal Procedure Code for execution alleging that the respondent-husband Netram had paid maintenance of only one month and the remaining amount was not paid. Hence, an amount of Rs. 4,800/- was claimed from November, 1991 to November, 1992. In the same case another application was moved on 9.2.1994 mentioning therein that in spite of the order for payment of monthly maintenance and in spite of the pendency of the recovery proceedings, the respondent-husband was not making any payment nor he was attending the Court and that petitioner No. 1 was in a great distress as she was unable to maintain herself and her two minor children, hence, for recovery of the amount due, a warrant of arrest be issued against the respondent-husband. In this application dated 9.2.1994 it was made clear that future amount i.e. subsequent to filing of application in December, 1992 has also not been paid. The amount which had fallen due subsequent to the filing of execution was also not paid. However, it appears that warrant was issued as per prayer made on 9.2.1994 for a sum of Rs. 10,400/- for the period from 1.12.1991 to 31.1.1994 at the rate of Rs. 400/- per month. It is significant to mention here that the amount of Rs. 10,400/- includes the amount of maintenance which had fallen due and not paid during the pendency of the execution application filed on 22.12.1992 which was for recovery of the amount of Rs. 4,800/- for the period November, 1991 to November, 1992. The arrest warrant was issued by the Court on 15.3.1994 owing to non-payment of Rs. 10,400/-.
5. It appears that on 7.3.1994, an application was filed by the respondent-husband which was fixed by the Court of J.M.F.C. for consideration on 8.3.1994. In the application the respondent contended that the wife (petitioner No. 1), was leading an adulterous life; she was having pregnancy conceived from some other person and thus she has become disentitled to claim maintenance, hence, the order of grant of maintenance be revoked.
6. The learned Magistrate on 8.3.1994 while passing the order came to the conclusion that since the application was pending for recovery of the maintenance amount from November, 1991 to November, 1992, it was not necessary to file separate application for recovery of the amount falling due during the pendency of the proceedings.
7. Against the order passed by the Magistrate in Misc. Criminal case No. 49/1992 on 8.3.1994, the respondent-husband preferred a criminal revision No. 41/1994 before the Additional Sessions Judge, Sagar. In the said revision, on 18.3.1994, partial stay was granted and the respondent was directed to deposit only Rs. 4,800/- for one year from November, 1991 to November, 1992, and recovery of the remaining amount was stayed conditionally on depositing the said amount of Rs. 4,800/- on or before 22.3.1994. The revision was finally decided by the Fifth Additional Sessions Judge, Sagar on 19.7.1994. The learned Additional Sessions Judge directed enquiry into the allegation made by the respondent that the petitioner No. 1 was leading an adulterous life. The respondent was held liable to pay the maintenance amount upto March, 1994 and the recovery of amount of maintenance for subsequent period after March, 1994 was suspended till the decision of the application filed by the respondent. Thus, with regard to arrears of maintenance upto February, 1994, it was held that the petitioner-wife was entitled to recover it. The order of the Magistrate was thus upheld with regard to recovery of maintenance amount for the period upto February, 1994. This order attained finality and was not further challenged by either of the parties. However, amount for the period December, 1992 upto March, 1994 was not paid in spite of the clear order passed by Sessions Judge in Cr. Revision No. 41/1994 dated 19.7.1994.
8. Thereafter in order to avoid payments as ordered by Sessions Judge on 19.7.1994 again an application was moved by the respondent on 20.8.1995 on the ground that he had paid Rs. 4,800/- for the period November, 1991 to November, 1992 and for rest of the amount, proceedings could to continue for payment of the future maintenance amount which had fallen due after November, 1992. Claim for subsequent maintenance has become barred by limitation. Hence the proceedings be closed.
9. In reply filed by the petitioners again it was contended that it
was unwarranted to renew the application and the decision of this Court in Loonchand v. Hemkanta’s case (supra), was relied on.
10. The learned Magistrate dismissed the application on 20.8.1995 and fixed the case for evidence of the respondent on his application under Section 125(4) Criminal Procedure Code. This order passed by the learned Magistrate on 16.9.1994 was challenged in the Criminal Revision 126/1994. The revisional Court on 17.11.1994 stayed the recovery of maintenance amount due from December, 1992 to February, 1994. The Revision No. 126/1994 was finally decided on 26.4.1995 by the learned First Additional Sessions Judge, Sagar who came to the conclusion that since in the original application filed by the petitioners i.e. wife and two minor children, the prayer was confined to the recovery of maintenance amount for the period from November, 1991 to November, 1992, separate applications ought to have been filed for the recovery of amount falling due for subsequent period. Since no such application/applications were filed for recovery of the amount due, the order dated 16.9.1994 passed by the Judicial Magistrate, First Class, Sagar was set aside and it was held that it was not possible for the petitioner to claim recovery of the maintenance amount for the period December, 1992 to February, 1994 in the present proceedings. Aggrieved by the order passed by the learned First Additional Sessions Judge, Sagar on 26.4.1995 in Criminal Revision No. 126/1994, present Criminal Revision No. 459/1995 has been filed by the petitioners Nanhi Bai and 2 others before this Court.
11. We have heard the learned Counsel for the parties. Learned Counsel for the petitioners Mr. R.K. Samaiya has submitted that the decision in the case of Loonchand v. Hemkanta (supra), has taken a correct view of the law and the decision in Vimal Kumar v. Smt. Siya Bai (supra), is incorrect opinion of the law and his submission is that it is not necessary to repeat the application after application for the recovery of the maintenance amount falling due during recovery proceedings.
12. Learned Counsel for the respondent Mr. S.L. Kochar has urged that in the application filed before the learned Judicial Magistrate, First Class, Sagar on 22.12.1992, no prayer was made for the recovery of the amount which may fall due in future i.e. during the course of recovery proceedings. This application was not amended for praying the relief of recovery of the amount which had fallen due subsequently. It is his further submission that we have to give literal and plain meaning to the First Proviso to Sub-section (3) of Section 125, Criminal Procedure Code and warrant cannot be issued for recovery of the amount due unless an application has been made to the Court to claim the amount which became due subsequently within a period of one year from the date it became due. Thus, for the period from December, 1992 to February, 1994, it was not open for the Magistrate to order recovery and issue warrant. He has relied on the decision of the Apex Court in AIR 1991 SC 772, State of M.P. v. G.S. Dal and Flour Mills. He also submits that the view taken by this Court in the case of Vimal Kumar v. Smt. Siya Bai (supra), is correct and separate applications should be filed for recovery of the amount falling due during pendency of recovery proceedings instituted for recovery of past arrears.
13. In order to properly appreciate the rival submissions, it is apt to quote Sub-section (3) of Section 125, Criminal Procedure Code which reads as under :
“(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 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 and 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.
Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground “for his wife’s refusal to live with him.”
14. The first proviso to Sub-section (3) of Section 125, Criminal Procedure Code provides that for issuance of warrant from recovery of any amount due, an application to levy the amount has to be moved within a period of one year from the date on which it became due. First proviso to Sub-section (3) of Section 125, Criminal Procedure Code deals only with the period of limitation for recovering the amount by issuance of warrant in the same manner in which fines are recovered, and a person can also be sentenced to imprisonment for a term which may extend to one month, co-terminus with payment, if made sooner. The amount under an order passed under Section 125, Criminal Procedure Code becomes due every month. The monthly payment has purpose behind it. Firstly, it ensures welfare of person in whose favour order of maintenance has been passed, and also ensures that such person should not be rendered destitute. Right of maintenance is integrally connected with right to life itself, as without it, it may be difficult for a person to survive and keep soul and body integral. The other side of the coin is, if maintenance is not claimed for one year it becomes irrecoverable as husband or other person may not be in a position to pay it in lump-sum and it appears that law presumes that for such a right of maintenance a really needy person should not sit idle and must enforce the order in accordance with its spirit and purpose for which it is passed, to meet day-to-day essential requirement for very survival.
15. In our opinion first proviso to Section 125(3) of the Code deals only with the limitation aspect. If a sum has fallen due, it should be recovered in one year. The person claiming dues has to approach the Court in one year and set the machinery in motion. Then there is nothing in the first proviso to Section 125(3) to put embargo on Court’s power to direct recovery of amount of monthly maintenance falling due during the pendency of the recovery proceedings initiated at the first instance for recovery of past arrears.
16. We find ourselves unable to agree with the submission of respondent’s Counsel that a prayer for recovery of future amount should have been made in the application moved at first instance and without such prayer having been made in the application, it is not within Court’s power to direct recovery. In our opinion there is no necessity of making such an anticipated prayer the claimant cannot know in advance that future amount is also going to be withheld by the person enjoined to pay it. Secondly, prayer for issuance of warrant can be made only for specific sum. As and when any amount in future becomes due, that can be informed to Court and Court on being satisfied that it has not been paid, can issue warrant for that amount also, without any requirement of filing fresh application in order to avoid multiplying number of cases. Since amount falls due month by month, such fresh applications are not to be filed nor amendment is required to be made every time. It is enough if claimant informs Court that amount during pendency is not being paid until and unless husband or other person bound by order satisfies the Court that he had paid amount and is paying it regularly and punctually, Court has full jurisdiction to order recovery of amount which has fallen due during pendency of recovery proceedings.
17. An objection as to incurring disqualification for payment of maintenance is governed by Section 125(4) of the Code, which reads as under :
“(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”
If the Court has stayed payment of maintenance and has directed investigation into such an objection raised under Section 125(4) and after investigation if such an objection is ultimately found baseless, the Court can order the recovery of amount which has fallen due for the period consumed in course of such investigation without requiring the wife or other person for making an application to recover such amount.
18. No procedural wrangle should be allowed to thwart the course of justice. A person in dire need cannot be asked to file fresh application every month for recovery of amount. Once proceedings are set in motion for recovery of past arrears, amount falling due in future till termination of such proceedings can always be ordered to be recovered. It is only when proceedings are terminated finally no revision is pending or maintenance amount is not interdicted by any stay order passed by a Court in a proceeding/appeal, revision or investigation into an objection under Section 125(4) of the Criminal Procedure Code, question of setting machinery again in motion may arise which is subject to rider specified in the first proviso to Sub-section (3) of Section 125. That machinery should be set in motion for the amount falling due in past 12 months only, the order granting maintenance remains alive and enforceable.
19. Before we advert to the other aspects of the matter, it would be apt to notice the decisions necessitating the reference. In case of Loonchand v. Hemkanta (supra). Hon’ble Shri Justice K.L. Shrivastava (as he then was) on 5.3.1986 expressed inability to agree with the view taken in the case of Shyam Beharilal, 1959 All. LJ 101, in which it was held that an application under Section 125(3) of the Code can be made only to recover the arrears that have fallen due and not for the recovery of any amount that may fall due subsequently and the decision of Orissa High Court in the case of Jagannath Patra v. Purnamashi Saraf & Anr., AIR 1968 Ori. 35, was distinguished and it was held that Section 125(3) of the Code cannot be construed as giving a technical defence to the defaulting husband to deprive the wife who has been vigilant and has come to the Court with an application for levying the amount of arrears and for an order for the monthly maintenance being regularly paid to her. The prayer for levying the amounts as and when they fall due is implicit in the application. In the circumstances of the case, there was no need, during the pendency of recovery proceedings to multiply applications for the purpose. Any fresh application would only have been in continuation of the prayer already made.
20. Learned Single Judge while making reference has expressed agreement with Loonchand’s case (supra), but, referred the matter to the Larger Bench in view of the decision in the case of Vimal Kumar v. Smt. Siya Devi, Cr. Revision No. 92/91(J), 1993(3) MPWN 141 decided by Justice D.K. Jain on 28.4.1993. A full report of that has also been made available to us by the learned Counsel for the petitioners. In the case of Vimal Kumar (supra), an order was passed in favour of Siya Bai and maintenance was awarded at the rate of Rs. 150/- per month, vide order dated 17.12.1984. There was stay in the revision (Cr. Revision No. 14/1984) filed against order dated 17.12.1984 maintenance was fixed at the rate of Rs. 100/- owing to the stay. Ultimately the said revision against order dated 17.12.1984 was dismissed on 29.7.1987 and the order passed by JMFC, Sagar was maintained. An application was moved on 13.2.1985 for recovery of the amount of one month : 17.12.1984 to 17.1.985. Another application was filed on 3.1.1986 claiming maintenance for the period from 18.1.1985 to 17.12.1985 i.e. for a period of 11 months at the rate of Rs. 100/- per month as per the partial stay order passed in Cr. Revision No. 14/1984 as the month of Rs. 150/- was reduced to Rs. 100/- under an interim order passed in pending revision. The proceeding which was pending with respect to maintenance before the Court of JMFC was dismissed on 4.12.1985. Thereafter an application was filed on 17.12.1987 for recovery of the maintenance allowance at the rate of Rs. 150/- per month from 17.12.1984 to 17.11.1987 amounting to Rs. 5,250/-, which application came to be registered as M.J.C. No. 8/1987. An objection was raised that in view of the Section 125(3) the recovery of maintenance allowance cannot be made for the amount which had fallen due prior to 17.11.1986 i.e. for the period more than one year prior to the date of application filed for recovery in the year 1987. The Single Bench took the view that since M.J.C. No. 40/1985 was dismissed on 4.12.1985 by Judicial Magistrate, First Class, Sagar and that dismissal of the application attained finality, hence, filing of the revision and passing of the stay in Cr. Revision No. 14/1984 on 29.7.1987 would not extend the period of limitation so as to make the recovery of maintenance ordered on 17.12.1984 by Judicial Magistrate, First Class and view was taken that the recovery could be made only for the period subsequent to 17.11.1986 as application for recovery was filed on 17.11.1987 and the recovery order enforced by the Magistrate from 17.12.1984 to 17.11.1986 was set aside.
21. It appears that in the case of Vimal Kumar v. Siya Bai (supra), question for consideration was not whether once the recovery proceedings have been set in motion for the arrears of last one year or any period shorter, for which arrears have fallen due, but here the question is whether in such a case for recovery of the amount which may fall due during the pendency of the said recovery proceedings fresh applications are required to be made ?
22. In case of Devideen v. Nankibai, 1966 MPLJ 831, S.B. Sen, J. (as he then was), in the backdrop of the facts that an application was made by Nankibai for maintenance, an order was passed on 31.7.1953 for payment of Rs. 14/- per month to her. For few months payment was made, but, thereafter further defaulted in payment. On 26.7.1956 an application was filed for recovery of arrears due then. Husband resisted the application on various grounds including his offer to maintain his wife on condition of her living with him and also his inability to pay the maintenance amount. The matter dragged on for a long time, which ultimately was decided against husband on 25.2.1959. While passing the said order on 25.2.1959, order for recovery of 7 months’ maintenance amount which was due on the date of application moved on 26.7.1956, was passed. Fresh application was moved on 11.6.1959, but, the same was dismissed in default on 21.7.1959. Further application was moved on 22.8.1959 for recovery of arrears of maintenance and also for granting maintenance allowance pendente lite, which was allowed by the Magistrate for the period covering up to 27.7.1961. The question arose for consideration was whether the application was made within a period of one year when the amount can be said to have become due ? His Lordship took the view that “when it is apparent that an application between the same parties is pending on the decision of which depends the success or failure of the latter application, the period required for decision of that application should be excluded for computing the period of one year mentioned in the proviso. Section 488 of the Code of Criminal Procedure, 1898 has been enacted for the maintenance of wives and children. The wife cannot be expected to carry on the litigation without any money which she legitimately claims from the husband. It was no fault of the wife that she was not getting any money from the husband. She had made an application and had that application been decided earlier, she could have got her maintenance regularly. It is, therefore, not proper to punish her for the delay. It is ludicrous to think that she could have made continuous applications for keeping them pending till the decision of another case.
‘The words “from the date on which it became due’ should be interpreted to mean from the date on which she could successfully make an application i.e. from the date when the Court holds she is entitled to recover. If the Court had not passed an order that she was entitled to get the amount, the application would be infructuous. On 25.2.1959 the Court finally decided that she was entitled to recover the amount and rejected all the pleas raised by the husband. When the husband raised a plea to maintain his wife on condition of her living with him, the previous order passed under Section 488 (old Cr. Procedure Code : 125 New Criminal Procedure Code) is substituted by the subsequent order. The period of one year is, therefore, to be calculated from the date when the subsequent order is passed under the proviso.”
23. The correct interpretation of the provision is that the limitation as envisaged under the first proviso to Sub-section (3) of Section 125 of the Code has to be computed with effect from the date on which it became due i.e. legally recoverable. The amount becomes recoverable only when proceedings have been finally adjudicated and the order has attained finality and recovery is not interdicted. The period of limitation can be said to start only when amount has become due. The effective date of amount falling due can only be determined in the facts and orders passed in each and every case.
24. In case of Kirparam Chhotan Raot v. Smt. Kalibai w/o Kirparam, 1960 MPLJ 613=AIR 1960 MP 241, Single Bench of this Court considered the question where the first application for levy of maintenance was dismissed for default of appearance. The second application was filed. It was held that where an application for levy of maintenance is made within the period of one year mentioned in the proviso, but is dismissed for default, another application made subsequently for the same purpose, may be granted. It was held that the order does not become non-existing.
25. A similar view has been taken by the Andhra Pradesh High Court in the case of P. Ataullah & Anr. v. Memunisa Begum & Anr., 1984 Cr.LJ 1522. In the said case, Magistrate passed an order granting maintenance to the wife and the revision filed by the husband against that order was dismissed by the Sessions Judge. The application, filed by the wife under Section 125(3) for issuing warrant for levy of amount of maintenance due having been filed within one year from the date of dismissal of the revision was held to be within time under Section 125(3) and it was held that the limitation started from the date of order of maintenance became final and the date of dismissal of revision by the Sessions Judge was taken to be such a date.
26. In the case of Jasodabai w/o Tarachand, AIR 1939 Sind 180, Division Bench took the view that mere absence of application within 12 months of the order of maintenance does not extinguish the order. It is a general principle of law that an order whose term is not fixed and whose currency is not made expressly dependent upon the continued existence of some circumstance or set of circumstances remains in force until it is cancelled and prima facie this rule applies to maintenance orders passed under Section 488 of the old Code of Criminal Procedure Code and the application which was moved after delay, the recovery was ordered to be made for the period of preceding 12 months. Simply by the fact that the said recovery has become barred by limitation, the order is not extinguished and still remains operative.
27. In the case of Jagat Bandhu Sahu v. Lakshmi Dei, AIR 1958 Ori. 267, where the wife applied for realisation of arrears of maintenance due and such claim also included certain amount which was for a period more than one year old, but, in the application it was clearly stated by the wife that the sum had already been claimed by her in an application made within time but it could not then be realised. Under these circumstances the Single Bench of Orissa High Court held that the application should be taken to be the continuation of the previous application upon which it was not possible to realize the amount due to the inability of the Court, the claim was, therefore, not barred by limitation and the Magistrate was justified in issuing a warrant for realization of the arrears of maintenance. The limitation does not provide a loophole to the husband and the Court’s inability to execute the order should not come in the way of the wife to claim amount at a subsequent date once she set the machinery in motion within limitation.
28. It cannot be disputed or denied that Section 125, Criminal Procedure Code is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. There is no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance, without doing annihilation to the object and plain language used in Section 125(3), Criminal Procedure Code.
29. Learned Counsel for the respondent has pressed into service the decision in the case of P.K. Unni v. Nirmala Industries, AIR 1990 SC 933, to contend that when plain language is there, that has to be given literal meaning and Court cannot subtract or add anything and where the limitation is prescribed, that has to be followed. But, here in the instant case there is no quarrel with the principle and the view which was adopted.
Learned Counsel has also relied on decision in the case of State of M.P. v. G.S. Dal and Flour Mills (supra), in which it has been laid down that the interpretation should be made in such a manner so that the intendment of the provision is not defeated.
We find 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 the limitation, recovery 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. As a matter of fact it appears that once machinery is set in motion as envisaged under Section 125(3), Criminal Procedure Code within period of limitation, it is the duty of the husband to inform and satisfy the Court that he has complied with the order and is complying regularly with the order of maintenance passed by the Court. The husband cannot be allowed to destroy efficacy of the order passed taking the technical pleas which are not available.
30. When we delve on the facts of the present case we find that the controversy which has been raised by the husband in the present revision with respect to the period December, 1991 to February, 1994 is totally uncalled for and as a matter of fact when earlier the warrant was issued in the month of March, 1994 and the Magistrate on 8.3.1994 had held that it was not necessary for the wife to file an application every year and the recovery could be ordered of amount falling due during pendency of application and the Magistrate also took up the application under Section 125(4), Criminal Procedure Code in which allegation was made that the petitioner No. 1 was leading an adulterous life, could be looked into for the reason that such an application was moved and was dismissed earlier, against which Cr. Revision No. 41/1994 was filed, partial stay was granted as mentioned above. Ultimately on 19.7.1994 enquiry was directed to be made into the allegation made by the husband against the wife of leading an adulterous life and having conceived pregnancy from someone else, but, at the same time, since the application was moved on 7.3.1994, it was held that the husband was liable to pay amount upto 1994 and this order dated 19.7.1994 passed in Criminal Revision No. 41/1994 undisputedly had attained finality, and was not challenged by the husband. It passes comprehension that the husband in spite of the order passed in favour of the wife, did not pay the amount for the said period and in order to get rid of the Court order passed in revision filed by him, deliberately filed an application on 28.8.1995 which was rightly dismissed by the Magistrate. Matter stood concluded with respect to period December, 1992 to February, 1994 in Cr. Revision No. 41/1994. Hence, the learned Sessions Judge has committed error of law in overlooking its previous order while coming to the conclusion that the amount for the period December, 1992 to February, 1994 could not be recovered.
31. Yet another fact is writ large that in the pending recovery proceeding which was filed for the period November, 1991 to November, 1992 before the Magistrate, the husband had filed an application on 7.3.1994 under Section 125(4) of the Criminal Procedure Code and the said application was dismissed by the Magistrate on 8.3.1994, against which Cr. Revision No. 41/1994 was preferred which was decided on 19.7.1994 as mentioned above. In the said revision it was held that the future maintenance shall remain stayed till the allegation made by the husband is enquired into by the Court and this application has not been decided on merits so far and the future maintenance from March, 1994 onwards has remained stayed in view of the order passed in Cr. Revision No. 41/1994 dated 19.7.1994. The last order-sheet of the case is dated 16.8.1995 which shows that the case was fixed for evidence on 29.12.1995 and thereafter it appears that the record was called in present revision. Hence, no further proceedings have taken place and the application of the husband filed under Section 125(4), Criminal Procedure Code has still to be decided by the Magistrate and the future maintenance amount has been stayed. It is really painful that the minor children also along with wife have been deprived for so long of the amount of maintenance which is otherwise payable to them. The provision under Section 125(4), Criminal Procedure Code disentitles only the wife if she is leading an adulterous life. However, husband respondent cannot escape his liability of maintaining two minor children — Sunita and Santosh — of paying maintenance of Rs. 100/- per month to each of them simply by the fact that the application filed by him against the wife making allegation of adultery and conceiving pregnancy from someone else has still to be decided. The stay of the future maintenance has to be restricted with respect to wife only, not to the two petitioners namely Sunita and Santosh and respondent must forthwith pay the amount to them.
32. When there is stay already for the recovery from March, 1994 onwards, and application under Section 125(4), Criminal Procedure Code is being enquired into, there is no question of repeating the application after the application by the wife and the amount of arrears upto this date and the amount which may fall due in future cannot be said to be barred by limitation as the wife is not required to repeat the application, once she has set the machinery in motion and Court has stayed the recovery to enquire into allegation made by respondent under Section 125(4), Criminal Procedure Code.
33. We are in respectful disagreement with the view taken in the case of Vimal Kumar v. Siya Bai (supra), which does not lay down the correct law in the said decision and the view which has been taken that the limitation would not start from the date of order passed in the revision, but, from the date on which Magistrate passed an order cannot be said to be sustainable and is hereby overruled. We affirm the view taken in the case of Loonchand v. Hemkanta (supra).
34. We direct, in the facts and circumstance of the case, as under :
(1) The amount of maintenance payable to the petitioners i.e. the wife Nanhi Bai, children Sunita and Santosh for the period December, 1992 to February, 1994 to be paid to them by the respondent within a period of one month from today.
(2) The arrears of the amount of maintenance payable to Sunita and Santosh from March, 1994 till date be paid to them within a period of 4 months from the date of present order.
(3) The application filed by the respondent under Section 125(4) of the Criminal Procedure Code for disentitling Nanhi Bai, petitioner No. 1 (wife), from claiming maintenance shall be decided by the Magistrate within a period of four months from the date of the order.
(4) The payment of the amount of maintenance for the period from March, 1994 till date to petitioner No. 1 Nanhi Bai and the amount which may fall due in future, will depend upon the outcome of the application filed under Section 125(4), Criminal Procedure Code and if application is dismissed, respondent shall have to pay the amount without wife’s filing fresh application for execution and no objection as to limitation shall be entertained.
(5) Parties are directed to keep themselves present before the Magistrate on 16th April, 2001. No fresh notice shall be required to be issued by the Magistrate to the parties for the purpose of appearance. The record be sent post-haste to the Magistrate so as to reach that Court before the date fixed.
35. With the aforesaid directions, this revision stands allowed. Cost of petitions are to be born by respondent which we quantify at Rs. 1,000/-.