Umesh Kumar vs Veena Kumari

Rakesh Kainthla, J

The petitioner has filed the present petition for terminating further proceedings and quashing orders dated 02.11.2023, 17.11.2023 and 20.12.2023 passed by learned Judicial Magistrate First Class, Amb, District Una (learned Trial Court) in Criminal Case No. 86-IV-2013. It has been asserted that the respondent/wife filed a petition against the petitioner/husband for seeking maintenance under Section 125 of Cr.P.C. Learned Trial Court awarded the maintenance at the rate of ₹1,000/- per month vide judgment/order dated 20.03.2009. The respondent filed an application on 16.04.2013 for the enforcement of the order. She claimed the arrears of maintenance w.e.f. March 2009 till January 2013. The petitioner took the preliminary objection that the claim was time-barred. Learned Trial Court passed an order holding that the wife was entitled to maintenance from 16.04.2012 and posted the matter for 15.07.2023 with a direction to pay the maintenance. The petitioner paid the amount in two instalments of ₹5,000/- and ₹7,000/-. The learned Trial Court passed an order on 02.11.2023 directing the payment of the remaining amount. However, nothing was due as per the order dated 22.05.2023. The order dated 02.11.2023 is contrary to the earlier order dated 22.05.2023 and the provisions of Section 125 of Cr.P.C. vide which only the arrears of one year can be claimed by the wife. Hence, the present petition.

The notice of the petition was issued to the respondent/wife but none appeared on her behalf, hence, she was proceeded ex-parte, vide order dated 30.07.2024.

I have heard Mr. N.K. Thakur, learned Senior Advocate assisted by Mr. Karan Veer Thakur, learned counsel for the petitioner.

Learned counsel for the petitioner submitted that a period of one year has been prescribed under the first proviso to sub-Section 3 of Section 125 of Cr.P.C. The learned Trial Court had recognized this position while passing an order dated 22.05.2023. However, the order was ignored and a subsequent order dated 02.11.2023 was passed directing the petitioner to pay the arrears of maintenance with effect from 2009 till 2013. The learned Trial Court could not have reviewed its earlier order. Therefore, he prayed that the present petition be allowed and the order dated 02.11.2023 be set aside.

I have given considerable thought to his submissions made at the bar and have gone through the records carefully.

A perusal of the copy of the application for the enforcement of the order dated 20.03.2009 shows that the respondent/wife had sought maintenance with effect from 20.03.2009 till 20.01.2013 at the rate of ₹ 1,000/- per month. Learned Trial Court passed an order on 22.05.2023 holding that the application was time-barred as the same was supposed to be filed within one year of the accrual of the right of maintenance. The application was filed on 16.04.2013. The wife was entitled to seek maintenance only from 16.04.2012 onwards as per Section 125(3) of CrPC. The copies of the order dated 15.07.2023 and 26.09.2023 show that an amount of ₹ 5000/- was paid on 15.07.2023 and an amount of ₹7000/- was paid on 26.09.2023. This means that the amount of ₹12,000/- being the arrears of maintenance of one year at the rate of ₹1000/- per month was paid in terms of the order dated 22.05.2023. However, the learned Trial Court passed an order on 20.12.2023 issuing the warrant of recovery of ₹1,20,000/-.

It was laid down by the Madhya Pradesh High Court in Nanhi Bai v. Netram, 2001 Cri LJ 4325:2001 SCC OnLine MP 128 that the right of maintenance is granted to a needed person, who should enforce the order of maintenance within one year. In case the order is not enforced within one year, the husband may not be able to pay the same in lump sum. It was observed

“14. The first proviso to sub-section (3) of section 125 Criminal Procedure Code provides that for issuance of a warrant for recovery of any amount due, an application to levy the amount has to be moved within one year from the date on which it became due. The first proviso to sub-section (3) of section 125 Criminal Procedure Code deals only with the period of limitation for recovering the amount by issuance of a warrant in the same manner in which fines are recovered, and a person can also be sentenced to imprisonment for a term which may extend to one month, con-terminus with payment, if made sooner. The amount under an order passed under section 125 of, the Criminal Procedure Code becomes due every month. The monthly payment has a purpose behind it. Firstly, it ensures the welfare of a person in whose favour the order of maintenance has been passed and also ensures that such a person should not be rendered destitute. The right of maintenance is integrally connected with the right to live itself, as without it, it may be difficult for a person to survive and keep the soul and body integral. The other side of the coin is, that if maintenance is not claimed for one year it becomes irrecoverable as the husband or other person may not be in a position to pay it in a lump sum and it appears that the law presumes that for such a right of maintenance, a needy person should not sit idle and must enforce the order in accordance with its spirit and purpose for which it is passed, to meet day to day essential requirement for very survival.”

Orissa High Court held in Sabita Kumari Nayak v. Satrughan Nayak, 1997 SCC OnLine Ori 284: 1998 Cri LJ 2713 that the legislature intended that the person in whose favour the order of maintenance has been passed should not sleep over his right and should enforce the order expeditiously. The Magistrate cannot issue a warrant for the arrears of maintenance for granting maintenance for more than one year. It was observed:

“5. On a reading of the proviso, it appears that the Legislature intended that the person in whose favour an order under Section 125 (3) of the Code has been passed does not sleep over and allow the arrears to grow. Direction levying the amounts as and when they fall due must be implicit in the direction given to the affected person. While interpreting Statutes Court has a duty to endeavour to see its legislative intendment and where the language is ambiguous and is capable of more than one meaning, the Court has a duty to sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts and mitigating hardships, harassment or unfair consequence. Chapter II of the Code deals with social purpose and is a beneficial and social legislation. The provisions contained in the Chapter have to be construed liberally and the Court should not take a negative approach. On the contrary, it must be positive and affirmative action-oriented.

It has to be noted that the proviso to subsection (3) of Section 125 of the Code in clear and categorical terms put an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the Court within one year from the date on which it became due. The first proviso to sub-section (3) of Section 125 prescribes the period of limitation for an application for recovery of any amount of maintenance from the date from which it became due. The acquiescence of the opposite party cannot confer jurisdiction on the Magistrate to enlarge the limitation. In certain circumstances, an application can be made for a period beyond one year, for example, where a pending application has been closed for statistical purposes and a fresh application is filed for the period covered by the earlier application and the period subsequent thereto. The proviso has been enacted to prevent a person in whose favour an order for maintenance has been made from being negligent and allowing the arrears to pile up so that their recovery becomes a hardship so far as the person from whom recovery is to be made is concerned. The court cannot enforce more than one year's arrears. The first proviso to sub-section (3), makes it abundantly clear that an application under the said sub-section has to be made within a period of one year from the date on which the amount became due. Necessarily in clear terms the first proviso to sub-section (3) puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due, unless the application is made within one year from the date of the amount became due. In such a situation, it is incumbent on the Magistrate to first ascertain as to when the amount has become due. The proviso does not prescribe an overall period of one year for which maintenance may be claimed. The limitation of one year prescribed is in relation to the date on which the amount falls due in terms of the order of the Magistrate. The legal position is, therefore, clear that an application has to be filed within one year from the date it became due….”

In the present case the learned Magistrate had recognized this position vide order dated 22.05.2023, however, he ignored the same while passing the order dated 25.12.2023 and proceeded to issue a warrant for recovery of maintenance for the sum of ₹ 1,20,000/- which admittedly is arrears of maintenance of more than one year. Once the arrears of maintenance of one year were paid, nothing survived in the petition and the warrant of realization of ₹1,20,000/- could not have been issued by the learned Magistrate.

Thus, the present petition is allowed and the order dated 25.12.2023 is ordered to be set aside. Consequently, the petition filed by the respondent/wife shall stand dismissed. A copy of this order be sent to the learned Trial Court.

The present petition stands disposed of and so are the pending applications, if any.