Allipeera Sab vs Khadar Bee

Rathnakala, J.—This petition is filed under Section 482 of the Code of Criminal Procedure, seeking to quash the order dated 28.6.2014 whereby the Fine Levy Warrant is issued against the petitioner herein/husband for recovery of arrears of maintenance due to the respondent No. 1 herein/wife.

Facts briefly stated, the respondents are the wife and minor child of the petitioner. They filed a petition for maintenance against the petitioner under the provisions of Section 125 of the Code of Criminal Procedure. Their petition came to be allowed directing the petitioner herein to pay maintenance of Rs. 1,500/- to his wife and Rs. 1,000/- to the child vide order dated 3.4.2012; on the failure of the husband to comply with the said order, the wife and child moved a petition under Section 125(3) of Cr.P.C. for arrears of maintenance for the period from 8.3.2007 to 8.2.2013 (71 months) for an amount of Rs. 1,77,000/-. Notice was ordered by the court to the petitioner herein.

In the meanwhile, on establishment of the Family Court, Bellary, the case stood transferred to the Family Court. Notice issued from the Court was shown to have been served on the father of the husband; on his failure to appear before the Court, a Fine Levy Warrant (''FLW for short) was ordered. Even the order of FLW was also not effective; on that, learned Judge ordered NBW along with FLW through the Deputy Superintendent of Police. The petitioner herein appeared before the court, paid Rs. 15,000/- towards arrears of maintenance and questioned the maintainability of the petition on the ground of limitation. The learned Judge dismissed the application by observing that the petition C.Misc. No. 57/2011 (main petition) is disposed of on 3.4.2012 and the recovery petition is filed within one year of the disposal of the main petition and is maintainable.

Sri. Shivaraj Hiremath, learned Counsel appearing for the petitioner submits, a petition under Section 125(3) of Cr.P.C. for recovery of the maintenance amount has to be filed within one year from the date on which maintenance amount became due. The learned Magistrate allowed the petition Crl.Misc. No. 57/2011 granting maintenance from the date of the petition i.e., 8.3.2007 vide his order dated 3.4.2012. The recovery petition Crl.Misc. No. 163/2013 filed on 4.3.2013 for maintenance of Rs. 1,77,000/- being the arrears from 8.3.2007 is barred by limitation and claiming lump sum arrears for the period of six years is not tenable. As per the provisions of Section 125(3) of Cr.P.C., no warrant shall be issued for recovery of any amount due under Section 125 unless application is made to the court to levy such amount within a period of one year from the date on which it became due. Hence, the order issuing FLW against him by the court below is patently erroneous and is liable to be set aside.

The respondent No. 1/wife and respondent No. 2/minor child, though served are unrepresented.

The question of limitation raised by the petitioner is on the foundation of the first proviso to sub-section (3) of Section 125 of Cr.P.C. which reads as under:

"125. Order for maintenance of wives, children and parents.-

(1)....

(2)...

(3)...

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."

The emphasis is on the words "within a period of one year from the date on which it became due". The contention of the petitioner, that since the respondents claimed maintenance right from the date of filing of the petition, which is beyond one year from the date of filing of the recovery petition, is misconceived. A bare reading of the provision makes it clear that the amount is liable to be paid from the date on which it became due. In the present case, the amount became due only after the petition was allowed on 3.4.2012 and since the direction is to pay the maintenance amount from the date of the petition, maintenance for the interim period, i.e., from the date of the petition till the disposal of the petition also became payable only on 3.4.2012. Rightly the learned Magistrate has brushed aside the contention of the petitioner. It does not require much discussion to comprehend that, the maintenance amount commencing from the date of the petition became final on 3.4.2012 i.e., on the date of disposal of the petition Crl.Misc. No. 57/2011.

A judgment of this Court reported in B.G. Shivananjappa Vs. Shantha alias Ushadevi and Another, relied by the learned Counsel appearing for the petitioner, has no nexus to the question under consideration in this petition. In the said petition, the respondents in their recovery petition after receiving the amount claimed in the petition had filed an application claiming arrears of maintenance for the past period. In that context, it was held that the application filed seeking arrears of maintenance beyond the period of limitation was not maintainable.

Under these circumstances, there is no merit in the contention of the petitioner that he is liable to pay maintenance amount only for the period prior to one year of filing of the petition.

Accordingly, the petition is dismissed.