Pundalik Biradar vs Sharadabai

K. Ramanna, J.—This revision petition is filed by the petitioner who is none other than the husband of respondent-Sharadabai u/s 397 r/w 401 of the Cr.P.C, to set aside the order dated 17/7/2003 passed by the Fast Track Court, Bijapur in Crl.R.P. No. 114/2001 and to confirm the order dated 11/4/2001 passed by the Civil Judge ( Jr. Dn.) & J. M. F. C., Indi in Crl.M. No. 2/1998.

Assailing the said order the revision petitioner has come up with this revision petition mainly on the ground that the impugned order under challenge is not only illegal and against the material evidence placed on record but also incorrect in allowing the revision petition filed by the respondent before the Fast Track Court holding that the recovery proceedings initiated by the respondent u/s 125(3) of Cr.P.C. fox recovery of arrears of maintenance as ordered by this Court in Cr.R.F.23/93 with effect from 30/5/1989 is maintainable, The Court below has not considered or verified as to whether there was any stay or interim order obtained by the husband of the respondents-petitioner heroin, when the revision petitions are pending before the Sessions Judge and this Court. Since there: was no stay order operating against the respondent as such the order under challenge directing the revision petitioner to pay arrears of maintenance with effect from the date of the order i.e., 30/5/1989 is incorrect, when there is a bear of limitation u/s 125(3) of Cr.P.C. Hence this revision petition.

Heard the arguments of Sri Chagashetty learned Counsel for the petitioner and Sri C.H. Jadhav learned Counsel for the respondent and perused the records.

During the course of arguments Sri Chagashetty learned Counsel for the petitioner submits that u/s 125(3) of Cr.P.C. the application filed by the respondent for recovery of arrears of maintenance beyond one year is not at all maintainable and the learned Magistrate was right in dismissing the application filed by the petitioner in Cr.M.2/968, but the learned Sessions Judge has set aside the order of the learned Magistrate holding that there is no bar for recovery of arrears of maintenance beyond one year, is incorrect. Therefore the impugned order under challenge passed by the learned Sessions Judge u/s 125(3) of Cr.P.C. To that effect learned Counsel for the petitioner relied on two decisions of our High. Court in the case of Shama Rao v. Premi Lamma and Anr. reported in ILR 1977 Kar. 1200, wherein this Court has held that:

Order for issue of warrant for levy of amount due to be made within one year from data on which it became due - Barred by limitation.

He also relied on another decision of this Court in the case of Lakshman Rao Sakharam Survase Vs. Smt. Mangala, , wherein it has been held that:

If the Sessions Judge had passed an order of stay of the operation of the Magistrate''s order during the pendency of the Revision Petition,, the starting point: of one year could have been from the date of dismissal order of the Session Judge.

As against this Sri C.H. Jadhav, learned Counsel fox the respondent submits that petition filed by the respondent in Crl. Misc. No. 3/86 u/s 125 Cr.P.C. for grant of maintenance is allowed in part by an order dated 30/5/1989. The revision petition filed by the respondent-wife before the Sessions Jude regarding enhancement of maintenance in Cr.R.B. 206/19B9 came to be dismissed. But; but the Criminal Revision Petition No. 198/89 filed by the husband came to toe allowed in part by reducing the maintenance to the extent of Rs. 50/-, which, has been challenged by the respondent in Cr.R.P. No. 23/93 and Crl.P.868/93 before this Court. This Court dismissed Crl.P.868/93 and allowed Crl.R.P.23/93 confirming the order of Maintenance fixed by the Magistrate to the extent of Re. 250/-. But the petitioner has not obeyed the order, passed by this Court, in Crl.R.P. No. 23/93. Hence, the respondent filed Crl.Misc. No. 2/98 for recovery of maintenance from 28/6/66 to 28/12/97 but the- said petition came to be dismissed, against which the respondent herein filed Crl.R.P. No. 114/00 before the learned Sessions Judge, which came to be allowed. The respondent herein filed petition u/s 125(3) Cr.P.C. fox recovery of maintenance on 16/1/1998 within one year from in the date of order i.e., 3/3/1997 passed by this Court in Crl.R.P.23/93. Therefore, the respondent is entitled to recover the arrears of maintenance. As the criminal petitions were pending before this Court and the Sessions Court finally it was allowed by the High Court; by an order dated 3/3/1997, the learned Sessions Judge was right in allowing'' the revision petition by setting aside the order of Magistrate,. The present revision petition is not maintainable and there is no bar as such. In support of this contention learned Counsel for the respondent relied on a decision in the case of (sic) Nanhi Bai and Others Vs. Netram, wherein the Division Bench of Madhya Pradesh High Court held, that;

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 rate of amount falling due can only be determined in the facts and orders passed in each and every case.

In the very same Judgment at para 28'' it has been observed that:

It cannot be disputed or denied that Section 125 Cr.P.C. 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) Cr.P.C.

So in order to avoid multiplicity of proceedings and once the machinery is set in motion when the amount becomes due and payable within the limitation, recovery can be ordered. Therefore, the learned Sessions Judge was right in allowing the revision petition filed, by the respondent for setting side the order dated 11/4/2001 passed by the J.M.F.C. in C. Misc. 2/98. Accordingly, the present revision petition is liable to be dismissed.

I have carefully examined the material placed on record,, It. is an admitted fact that the respondent; is the legally wedded wife of the petition When the revision petitioner failed to look after the respondent herein, she filed a petition under Sac/125 Cr.P.C. before the J.M.F.C. Indi in. C.Misc.3/86 for maintenance at the rate of Rs. 400/- p.m. It is not in dispute that the said petition was allowed on 30/5/1969 directing the revision petitioner husband to pay a sun of Rs. 250/- p.m. But the petitioner has challenged the said order of maintenance in Cr.R.P. No. 19B/BB before the Additional Sessions Judge, Bijapur. In turn the respondent wife not being satisfied with the quantum of maintenance awarded by the Magistrate, filed a revision petition No. 206/89 before the Additional Sessions Judge, Bijapur. The Crl R.P.No. 196 & 206/09 were hoard and disposed of toy the Addl. Sessions Judge, Bijapur on 18/11/1992 by which the revision petition filed, toy the wife is dismissed, but the revision petition filed by the husband is allowed and the maintenance was reduced to Rs. 200/- p.m., payable from 20/5/1589 onwards. There is reduction of maintenance awarded to the extent of Rs. 50/- awarded by the Tribunal. But the respondent herein being the wife filed Cr.P.No. 868/93 and Cr.R.P.No. 23/1993 before this Court. Accordingly, this Court has allowed the Crl.R.P. 23/93 holding that the respondent wife is entitled for Rs. 250/- p.m. by setting aside the order of the Additional Sessions Judge passed in. Cr.R.P. 198/1989 and. confirming'' the order of the Magistrate passed in C. Misc.3/86. So immediately- after allowing the Criminal Revision Petition by this Court on. 3/3/1997, the respondent herein filed Cr. Misc. 2/1998 u/s 125(3) of Cr.P.C. on 16/1/1998. The revision petitioner has not produced any documents before this Court to show that he has complied with the order passed by this Court as well as the orders passed by the lower Court in the earlier occasion, However, it is clear that there was no stay granted either toy the Sessions Judge or by this Court during the pendency of the Criminal Revision petition. and Criminal Petition.

It is contended by the counsel for the petitioner that the application filed by the respondent more than one year after the Magistrate order, granting maintenance to her is barred by limitation. But the Division Bench of Madhya Pradesh High Court in the case of (sic) Nanhi Bai and Others Vs. Netram, and also several other High Courts have held that once the machinery is set in motion as envisaged u/s 125(3) within a period of limitation, it is the duty of the husband to inform and suggest the Court that he has complied with the order regularly.

It is not the fault of the respondent in filing the application u/s 125(3) of Cr.P.C, for recovery of arrears of maintenance within one year from the date of order passed by this Court. Since the revision petitioner himself filed a case before the Sessions Court in Crl.R.P. 198/89, which came to be allowed by reducing the maintenance amount to the extent of Rs. 200/- p.m. which has been challenged by the respondent for enhancement of maintenance amount before this Court by filing Crl.R.P. No. 23/93 and. Crl.p. 868/93 and this Court allowed Crl.R.P. No. 23/93 by setting aside the order passed by learned Sessions Judge in Crl.R.P. 198/89 and confirmed the order passed by learned Magistrate in Crl.Misc. 3/86 but even after order passed by this Court the petitioner failed to comply with the said order and within one year from the data of order passed lay this Court the respondent herein filed the petition, u/s 125(3) of Cr.P.C. on 16/1/1996. Therefore the learned ''Sessions Judge has allowed the petition filed, by the respondent by Betting aside the order of Magistrate. So at the instance of the parties the matter was pending before the Sessions Judge and the High Court, therefore,, the wife is entitled to recover the arrears of maintenance from the date of the order of maintenance granted, by the Magistrate. Therefore, the revision petitioner is liable to pay arrears of maintenance from 30/5/1989.

Hence, the revision petition is dismissed as devoid of merits.