Thennarasu vs Mahalakshmi @ Mahadevi and Mathusuriya

T. Sudanthiram, J.—The petitioner herein is the husband and father of the first and second respondents respectively. The learned Judicial

Magistrate, Sankarankovil passed an order in M.C. No. 11 of 2007 on 31.12.2007, directing the petitioner to pay maintenance amount of Rs.

500/- to the first respondent and Rs. 250/- to the second respondent every month and the said maintenance amount to be paid from the date of the

maintenance petition i.e. from 20.03.2007.

After the said order being passed the first respondent herein filed a petition in Cr.M.P. No. 93 of 2008 on 04.01.2008 for execution of the

order u/s 128 Cr.P.C. In the said application, notice was ordered to the petitioner/respondent. But the respondent has not appeared before the

Court. On 31.08.2009, the learned Judicial Magistrate passed an order, the petitioner has to pay the maintenance arrears amount of Rs. 6,750/-

for the period from 20.03.2007 to 20.12.2007 for nine months, as it is due, imposing imprisonment on the petitioner herein for a period of one

month. Aggrieved by the said order, the petitioner has preferred this revision.

The learned Counsel for the petitioner submits that the date of order passed in M.C. No. 11 of 2007 is on 31.12.2007 and the order was

passed in Cr.M.P. No. 93 of 2008 on 31.08.2009 which is beyond the period of limitation of one year. The learned Judicial Magistrate had no

jurisdiction to pass one month remand order on the petitioner as per Section 125(3) of Cr.P.C.

The learned Counsel for the petitioner relied on the decision reported in 2003 MLJ (Crl.) 227 (A. Gopal v. G. Dhanammal).

This Court considered the submissions made by the learned Counsel for the petitioner and perused the materials available on record.

Section 128 Cr.P.C. reads as follows:

Enforcement of order of maintenance:- A copy of the order of (maintenance or interim maintenance and expenses of proceeding, as the case

may be) shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance

for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order

may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the

identity of the parties and the non- payment of the allowance, or as the case may be, expenses, due.

Section 125(3) Cr.P.C. reads as follows:

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 finds, and may sentence such person, for the whole or any part of

each month''s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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 is became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate

may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there

is just ground for so doing.

Probably, the learned Counsel for the petitioner has not properly understood the Section 125 of Cr.P.C. The learned Counsel for the petitioner

is arguing this matter under the impression that the learned Judicial Magistrate has no power to pass an order u/s 125(3) beyond the period of one

year. A wrong argument has been advanced by the learned Counsel for the petitioner. As per Section 125(3) Cr.P.C, no warrant shall be issued

for the recovery of any amount due unless an application be made to the Court to levy such amount within a period of one year from the date of

which it became due. Therefore, the condition precedent for a Magistrate to pass an order is that the application should have been made by the

party within one year from the date on which it became due. There is no time limit for the Court to pass that order on that application. In this case,

the amount became due from the date of the judgment dated 31.12.2007, and an application has been made by the first respondent herein on

04.01.2008 itself. Therefore, the application made by the respondent is maintainable as it was made within the limitation period of one year.

Therefore, though the order was passed belatedly on 31.08.2009, it is not an illegal order. The decision cited by the learned Counsel for the

petitioner reported in 2003 MLJ (Crl.) 227 (A. Gopal v. G. Dhanammal) wherein it is specifically observed that ""a petition u/s 125(3) Cr.P.C

could be filed claiming arrears of maintenance only for a period of one year from the date on which it became due"".

Accordingly, the revision petition is dismissed.