Sardar Beg Sahib vs Sidhani Bi

David Annoussamy, J.—This is a revision by the husband against the order issuing a warrant for recovering the amount due by him by way

of arrears of maintenance in the manner provided for levying fines. The two grounds urged before me by the learned counsel for the revision

petitioner are (1) The warrant in case can be issued only for arrears of 12 months and in the present case, the warrant has been issued for arrears

of 51 months, and for this reason, the warrant was void. (2) Before issuing the warrant, the court should have given him notice to show cause why

he has not complied with the order of maintenance.

In this case, the petition for maintenance was filed by the wife, the respondent herein, in the year 1978. It was numbered as M.C. 127 of 1978

and the learned Sub-Divisional Judicial Magistrate. Ulundurpet, passed an order granting maintenance to the tune of Rs. 100/- per mensem by

order dated 19-10-1978. There was an appeal by the husband, and that appeal was disposed of on 16-10-1980 in Cr. App. 115 of 1978

confirming the order of the learned Magistrate. On 24-2-1981, the wife filed a petition under S. 128 Cr.P.C. praying the Magistrate court to take

action for collection of the arrears. In that petition, it is stated that the arrears of maintenance for the period of 35 months from 21-3-1978 to 20-

2-1981, worked out to Rs. 3500/-, and that the husband had paid only Rs. 200/- so that the balance of Rs. 3300/- was due. A distress warrant

was issued by the learned Judicial Second Class magistrate, Ulundurpet, in that petition filed by the wife. After that, the husband paid on additional

amount of Rs. 400/-. Then, the wife filed another petition under S. 128 Cr.P.C. before the Sub-Divisional Judicial Magistrate, Ulundurpet on 23-

12-1982, stating that from 21-3-1978 to 20-12-1982, the arrears of maintenance for 57 months worked out to Rs. 5700/- and that only a sum of

Rs. 600/- has been so far paid. She prayed the Magistrate to take action for collection of the arrears. Their petition was numbered as Cr.M.P.

3700 of 1982. The learned Magistrate ordered issue of warrant, it is not known as to whether the warrant had been actually issued or not. But the

husband filed on 31st January, 1983 preliminary objections against that petition. This was followed by another petition by the husband to recall the

non-bailable warrant stated to have been issued on 24-11-1982. That was also numbered as Cr.M.P. 3700 of 1986. In Cr.M.P. 3700 of 1982,

both the parties were elaborately heard, and the learned Magistrate overruled the objection of the husband that the warrant can be issued only for

the arrears of maintenance amounting to 12 months.

The relevant provision of law in this matter viz., the first proviso to Section 125(3) Cr.P.C. is as follows -

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.

Therefore, the law is not to the effect that no warrant can be issued for an amount of arrears of maintenance for more than 12 months, but the

application should be made within a period of one year from the date on which it became due. Whatever amount has become due before one year

prior to the date of the application cannot be recovered by way of warrant. In this case, the maintenance became due on 19-10-1978. The first

application was filed on 24-2-1981. The husband though properly given notice, as not present, and no representation was made. It is nor clear

whether there was any stay in the course of the appeal postponing the due date. Therefore, it has to be concluded that the maintenance became

due from 19-10-1978. When the wife first applied in Cr.M.P. 383 of 1981 on 24-2-1981, she could have applied for recovering maintenance

only from 24-2-1980. It appears that the husband has, by way of paying an amount of Rs. 600/-, managed to see that that application was kept

pending for non-prosecution. In the second application numbered as Cr.M.P. 3700 of 1982, the wife has stated that after the issue of distress

warrant in Cr.M.P. 383 of 1981, a sum of Rs. 400/- has been paid in addition to the sum of Rs. 200/- already paid by him. Therefore, in the

second application also, it was open to the wife to seek, for the issuance of a warrant to recover the amount of maintenance due only from 24-2-

1980. But for the reason that the warrant states that the amount of arrears of maintenance is from 19-10-1978 the warrant is not void, but the

warrant has to be restricted to the recovery of maintenance from 24-2-1980.

Let us now turn to the next point. The case of the revision petitioner is that before a warrant is issued, he should be given an opportunity of

showing cause why he is not able to comply with the order. In fact, u/s 125(3) Cr.P.C. the Magistrate has to satisfy himself first before issuing the

warrant for levying the amount due that the amount remains unpaid and that the husband has no sufficient cause for non-payment. For that purpose,

the Magistrate has to give an opportunity to the husband. Such an opportunity can be given in various way. He may either be issued a show cause

notice or he may be summoned before the Magistrate to state his objections, if any, or in any other manner. In this case, though on the petition of

the wife, the Magistrate has endorsed on 12-1-1983 ""Issue warrant to the respondent"", it is not known whether any warrant was issued. In fact, in

the preliminary objections dated 31-1-1983, the husband states that he learnt that a petition has been filed by his wife under S. 128 Cr.P.C. to

enforce the order of maintenance, and in his petition to recall the non-bailable warrant, he says that the non-bailable warrant is said to have been

issued on 24-12-1982. It is seen from the records, that no such warrant has been issued on that date. If a warrant has been issued by the learned

Magistrate on the application and if the revision petitioner wanted such a warrant to be cancelled, then he would be justified in filing this petition.

The warrant that he now wants to be cancelled is the one issued as per the order of the learned Magistrate in Cr.M.P. 3700 of 1982 on 8th June

1983, after the husband has placed before the Magistrate all the objections. Therefore, the order which he is now challenging is the order which

has been passed alter a sufficient opportunity has been given to the husband, and it cannot be assailed for the reason that no sufficient opportunity

was given to the husband. This ground also fails.

In the result, the revision petition is allowed in part and the order of the court below is modified to that extent that the amount of arrears of

maintenance for which warrant is issued is only Rs. 3400/-.

Petition partly allowed.