Karuppasamy vs Vijaya and Rathika

Aruna Jagadeesan, J.—This revision is filed against the order passed by the learned Judicial Magistrate No. 1, Kulithalai, in Cr. M.P. No. 3086 of 2008 dated 10.07.2009 allowing the petition filed for recovery of arrears of maintenance from the period 04.09.2006 to 04.09.2007. The first respondent/wife filed a petition u/s 125 of Code of Criminal Procedure in M.C. No. 08 of 2003 before the learned Judicial Magistrate No. 1, Kulithalai against the respondent/husband claiming maintenance for herself and for minor daughter. The said petition was allowed by the trial court by its order dated 03.02.2005 awarding a sum of Rs. 500/- to each of the respondents herein from the date of order i.e. on 03.02.2005. The respondent/revision petitioner herein filed a revision before Sessions Judge, Karur, against the said order passed by the trial court and the same was dismissed by the learned Sessions Judge by order dated 18.08.2006 affirming the order passed by the trial court. The respondent challenged it before this Court by filing a petition in Crl. O.P. No. 8915 of 2007 against the order passed by the Sessions Judge, Karur. The said Criminal Original Petition was dismissed by this Court by its order dated 31.03.2008 affirming the order passed by the courts below.

After affirmation of the order passed by the High Court, the interim application in Crl. M.P. No. 3086 of 2008 was filed by the respondent claiming arrears of maintenance for the period from 04.09.2006 to 04.09.2007 for a sum of Rs. 12,000/-. The petitioner in Criminal M.P. No. 3086 of 2008 was objected by the petitioner contending that the respondents cannot claim arrears of maintenance beyond a period of one year under first proviso of Section 125(3) Cr.P.C. being barred by limitation. The trial court by its order dated 10.07.2009 allowed the said petition and directed the petitioner to deposit a sum of Rs. 12,000/- towards the said arrears within a month from the date of order. Aggrieved against which, the present revision has been filed by the petitioner/husband.

The learned counsel for the petitioner contended that under proviso to Sub Section (3) of 125 of Cr.P.C. no warrant can be issued to levy the amount due beyond a period of one year. Therefore, application is barred by limitation.

On the other hand, the learned counsel for the respondents contended that the respondents were entitled to the arrears of maintenance right from the date, the Magistrate passed the order and submitted that because the petitioner disputed the said order and challenged it in the court of Sessions and then also in the High Court, they were unable to recover the amount during that period when the same was under challenge though it became due during the said period. The learned counsel for the respondent relied on the decision rendered by the Hon''ble Supreme Court of Shantha @ Ushadevi and Another Vs. B.G. Shivananjappa, wherein the plea of bar of limitation under the proviso of Section 125(3) of the Code was rejected by the Hon''ble Supreme Court holding that liability to pay maintenance as per the order passed u/s 125(1) is a continuing liability.

Heard the learned counsel for the parties and perused the records.

The facts that emerge are, by order dated 03.02.2005 passed by the learned Judicial Magistrate No. 1, Kulithalai the respondents, who are the wife of daughter of the petitioner, were granted maintenance at the rate of Rs. 500/- each per month. This order of grant of maintenance was affirmed by the Sessions Court in Crl. R.C. No. 25 of 2005 dated 18.08.2006. The orders passed by the courts below are confirmed by the High Court in Crl. O.P. No. 8915 of 2007 dated 31.03.2008. Admittedly, for the earlier period the arrears of maintenance was claimed by the respondent and the same was also paid by the petitioner. In the meanwhile, the petitioner has moved this Court u/s 482 Cr.P.C. to set aside the order passed by the courts below granting maintenance. This Court has dismissed the said petition by order dated 31.03.2008. In the meanwhile, the arrears of maintenance for the period 04.09.2006 to 04.09.2007 had become due and the same was not paid by the petitioner.

The words ''from the date on which it became due'' mean from the date on which the wife could successfully make an application, i.e. from the date when the court holds that she is entitled to recovery. The expression ''from the date on which it became due'' should receive a liberal construction and it would mean that from the date on which it became recoverable. The amount for the period i.e. 04.09.2006 to 04.09.2007 became recoverable only when proceedings have been finally adjudicated by this Court and the award of maintenance attained the finality. In such view of the matter, once machinery of law was set into motion, as provided for u/s 125(3) of the Code within the period of limitation, the husband would be duty bound to pay the arrears of maintenance. At this juncture, it is relevant to refer to the decision of the Hon''ble Supreme Court stated supra wherein it has been held as follows:

We are, therefore, of the view that in the peculiar circumstances of the case, the bar u/s 125(3) cannot be applied and the High Court has erred in reversing the order of Sessions Judge. It must be borne in mine that Section 125 Cr.P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed u/s 125(1) is a continuing liability.

Applying the said dictum laid down by the Hon''ble Supreme Court to the facts of this case, it is clear that the liability to pay maintenance by the husband/petitioner herein as per the order passed u/s 125(1) Cr.P.C. is a continuing liability. It cannot be contended by the petitioner that it is barred by limitation, more so, when he has challenged the award of maintenance in the Sessions Court and later in this court till it attached its finality on 31.03.2008. Therefore, the order passed by the learned Magistrate allowing the petition filed by the respondent is proper and warrant no interference. I do not find any illegality or infirmity in the order passed by the courts below and the present revision deserves dismissal. In the result this Revision is dismissed.