Pokala Brahmaniah vs Pokala Padma and Others

The respondents who are the wife and children of the petitioner, have filed two petitions for maintenance u/S. 125 Cr.P.C. i.e. M.C. Nos. 7/84 and 4/85, in the Court of the II Additional Munaif Magistrate, Ongole, who by his order dated 24-2-1987, granted them maintenance @ Rs. 200/- per month. Not satisfied with that, they preferred a revision to the Sessions Judge, who enhanced the maintenance to Rs. 275/- per month by his order dt. 13-4-1988. Then they have filed Crl.M.P. No. 785/89 in the Court of the II Additional Munsif Magistrate for enforcing the arrears of maintenance of Rs. 7,525/- by sending the petitioner to jail. The learned Magistrate ordered that the petitioner should be sent to jail for a period of 24 months. Against that, a revision was filed in Crl Revision Petition No. 123/88 before the Additional Sessions Judge, Ongole, which was dismissed. As against that, this petition is filed.

The learned counsel for the petitioner referred to the proviso to sub-s. (3) of S. 125 Cr.P.C. which reads as follows :-

"S. 125(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 after 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."

He contends that according to this proviso, no warrant shall be issued for recovery of any amount due under that Section, unless an application is made to the Court to levy such amount within a period of one year from the date on which it became due. He further contends that the arrears of maintenance claimed in M.C.No. 7/84 are for a period of 24 months and in M.C .No. 4/85, the arrears claimed are for a period of 27 months; and so, since the claim is for more than one year, the petition is not maintainable. He referred to a decision in Jangam Srinivasa Rao Vs. Jangam Rajeswari and Another, in which a learned single Judge of this Court held that the maintenance-holder cannot accumulate the maintenance for a period beyond 12 months and that no application for execution of the maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application.

But the contention of the learned counsel for the respondents (wife and children) is that as the order in the revision was passed on 13-4-1988 by which the order of maintenance became final, the petition for execution of the order of maintenance was filed on 11-5-1988, which is within the period of 12 months. He referred to the decision in Ataullah v. Maimunnissa Begum (1984) 3 APLJ 98 : (1984 Cri LJ 1522) in which another learned single Judge of this Court observed as follows :-

"The matter became final only by virtue of the order passed by the learned Second Additional Sessions Judge on 12-11-1982. In this view of the matter, the application viz., Cr.M.P. No. 91/83 in M.C. No. 95/79 on the file of the Additional Judicial First Class Magistrate, Adoni is within time. The learned counsel, however, submits that in the absence of any stay, nothing prevented the respondents from filing an application earlier. But for the purpose of limitation of one year, the Court cannot ignore the fact that the matter was pending by way of a revision and the order of maintenance became final only on the dismissal of the revision by the learned Additional Sessions Judge."

In that case, there were arrears of maintenance for 37 months and the learned Magistrate directed the petitioner to undergo sentence of imprisonment for 37 weeks i.e., at the rate of one week per month. In para 4 of the judgment, the learned Judge referred to the facts of the case during the pendency of the revision. The petitioner therein deposited a sum of Rs. 2,500/- and the same was withdrawn by the respondents. The learned Judge, therefore, held that it is not a fit case where the order of arrest and the imprisonment for 37 weeks should be confirmed in respect of non-payment of the balance. The learned Judge further held :

"... However, the proviso says that an application has to be made within one year. That means at least there can be imprisonment in respect of those twelve months. Accordingly, the sentence of imprisonment awarded by the lower Court is reduced to 12 weeks ......"

Thus, though the learned Judge held that the petition for execution can be filed within one year from the date of the order in revision, he held that the imprisonment can be made in respect of the default for 12 months as laid down in the proviso.

In Ataullah''s case (1984 Cri LJ 1522) (supra), the learned single Judge referred to a decision In Moddari Bin Vs. Sukdeo Bin, , in which it is stated as follows :-

"The maximum of one month, in our view, in this context and on proper interpretation of the language of the section is relatable to a period of the arrear for one month. In other words, default of one month is punishable by one month''s imprisonment and no more. If the default is more than one month, then the imprisonment can be for as many months of default subject to a maximum of 12 months."

Therefore, even though the respondents can file the petition for realisation of the arrears of maintenance within one year from the date of orders in the revision, the maximum period of imprisonment which can be awarded to the petitioner, can be 12 months. In that view, the order passed by the learned Magistrate sentencing the petitioner to suffer imprisonment for 24 months is illegal and therefore, it is confined only to 12 months in Crl.M.P. No. 785/85. It is stated that by virtue of the interim suspension of that order granted by this Court, the petitioner has been released. The petitioner is directed to be recommitted to serve the remaining period of imprisonment in that Cri.M.P. No. 785/85.

The Crl. Petition is partly allowed accordingly.

Petition partly allowed.