Allahabad High Court
Shamshuddin vs State Of U.P. & 3 Others on 3 September, 2013
Bench: Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
COURT NO. 50
CRIMINAL MISC. WRIT PETITION NO. 16800 of 2013
Petitioner - Shamshuddin
Versus
Respondents :State of U. P.- and others
Counsel for the Petitioner - Rishikesh Tripathi
Counsel for the State : AGA
CORAM
HON'BLE ANIL KUMAR SHARMA, J
Heard learned counsel for the petitioner and the learned AGA for the State
2. The petition under Article 226 of the Constitution of India has been filed to issue a writ, order or direction in the nature of certiorari quashing the order dated 22.3.2010 and 25.9.2012 passed by Addl. Chief Judicial Magistrate-1, Banda in Criminal Case no. 400/IX/2012 and order dated 2.5.2013 passed by Addl. Sessions Judge, Court no. 1, Banda in Criminal Revision no. 3 of 2013. It has been further prayed that a mandamus be issued to restrain the courts below from illegally recovering the amount of maintenance from the petitioner pursuant to orders dated 25.9.2012 and 2.5.2013.
3. Succinctly stated the facts of the case are that the respondents no. 2 t6 4 filed two separate cases for award of maintenance u/s 125 Cr. P.C. against the petitioner alleging themselves to be his wife and children, which were allowed by the Magistrate vide judgment dated 21.10.2003 and the maintenance was awarded as shown in column no. 2 and 3 of following table:
By the Magistrate
By the Revisional Court
Name of applicant
Monthly Amount awarded
Due date
Monthly Amount awarded
Due date
1
2
3
4
5
Smt. Razia
Rs. 300/-
15.10.1993
Rs. 300/-
15.10.1993
Rs. 500/-
22.10.2003
Rs. 500/-
21.10.2003
Km. Safiya
Rs. 150/-
15.10.1993
Rs. 300/-
21.10.2003 till marriage
Rs. 300/-
22.10.2003
-
-
Muinuddin
Rs. 400/-
01/09/98
Rs. 400/-
21.10.2003 till majority
The revisionist challenged the aforesaid order of the Magistrate in two Criminal Revisions being numbers 11 of 2004 and 12 of 2004, which were partly allowed by Special Judge (SC Act), Banda vide common judgment dated 10.6.2005 and modified the amount of maintenance payable to opposite parties as noted in column nos. 4 and 5 of the above table. During pendency of the revision the opposite parties filed application on 23.3.2004 for recovery of the amount of arrears as awarded by the learned Magistrate amounting to Rs. 84,800/-. However, after the judgment of the revisional Court, the recovery warrant was recalled for correction on the application of the revisionist. Then the opposite parties filed application for amendment on 20.4.2009 and prayed for recovery of the amount of Rs. 1,01,400/- up to date. The learned Magistrate obtained office report and thereafter issued recovery warrant of the balance amount due after adjusting the payment made by the petitioner. Aggrieved, the petitioner filed criminal revision in the Court of Session, which too has been dismissed. Hence this petition has been filed for the reliefs noted in para-2 above.
4. Learned counsel for the petitioner has vehemently argued that the Courts below are illegally recovering the amount of maintenance which is time barred and have allowed amendment contrary to the provisions of law.
5. Per contra learned AGA supporting the impugned orders has submitted that the application for recovery of the amount of maintenance was filed by opposite party no. 2 during the pendency of the revisions and after their disposal on the application of the petitioner, the recovery warrants were recalled for correction, whereupon an application was filed by opposite party no. 2 for amendment, which in fact was not an application for amendment in application, but was to correct the warrant pursuant to the order of the revisional Court and was in tune with the request of the petition. He further submits that the application for recovery of maintenance amount can be filed when it becomes due. He lastly submitted that in the instant case, the amount firstly became due when the application u/s 125 Cr.P.C. was initially decided by the learned Magistrate and thereafter when the revisions were disposed by the Court of Session.
6. It would be apt to quote Section 125 (3) Cr.P.C in order to appreciate the contentions raised as the Bar, which reads as under:
"(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 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 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.
Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him."
It appears from the record filed along with petition, that the execution application was filed by opposite party no. 2 well within time, but it could not be disposed of due to pendency of the revisions. After decision in the revisions, the petitioner moved the Court for recall of recovery warrant for correction, which was allowed, then an application was filed by the opposite party no. 2 for recovery of the entire amount due. She was diligently pursuing the application for recovery of maintenance amount and there were no laches on her part. The application filed by opposite party no. 2 was in fact an effort to specify the exact amount which accrued due up to that date. Such application is only supplementary or incidental to the petition already filed on 23.3.2004 admittedly within the period of limitation. The words 'from the date on which it became due' would only mean from the date when the Court holds that she is entitled to maintenance i. e. when the application for maintenance is finally disposed of.
7. In the instant case, the revisional Court has granted maintenance to opposite party no. 2 from 15.10.1993 and to her minor children from 22.10.2003. The provisions (first proviso to Sub-section (3) of Section 125 of the Code) are not in the nature of penal provisions but are welfare provisions and hence the rule of strict construction cannot be invoked. The 1st proviso, which enacts a rule of maintenance must, therefore, receive a liberal construction as it is not intended to come to the rescue of a defaulting husband who neglects to honour his obligations and seeks to avoid payment of maintenance to his wife and children, though ordered by a competent Court. It is intended to prevent a person entitled to maintenance from being negligent and allowing arrears to pile up until their recovery would become a hardship or an impossibility to the other side. In the case of Shanta Vs. B. G. Shivananjappa AIR 2005 SC 2419, the Apex Court has observed that a subsequent application for arrears for a subsequent period filed in the pending application, would not be a fresh application and cannot be dismissed as time barred.
8. Learned counsel for the petitioner has placed reliance on the case of Mohd. Idris Khan Vs. Smt. Akila Khatoon and others 1994(31) ACC 808 in support of his contention about limitation period for filing execution application. In this case it was observed that the remedy of the wife for realising the maintenance allowance which become 12 months old is barred under this provision. The Court held that the husband cannot be coerced to pay maintenance allowance which the wife is not entitled to get on account of her inaction by taking recourse to his detention in prison. As we have seen earlier, in the instant case, the opposite party no. 2 is diligently pursuing her execution application for recovery of amount of maintenance which has become due and not paid by the petitioner. As complete facts leading to the execution application do not find place in the report, so no other inference can be drawn.
9. It may also be noted here that the application for maintenance was also allowed for two minor children of the petitioner. In view of provisions of Sections 3, 6 and 29(2) of the Limitation Act, the limitation period of one year would not be applicable in case of maintenance order in favour of minors.
10. As regards the other objection regarding amendment in the execution application, the documents filed by the petitioner along with the petition clearly show that the recovery warrant had already been issued and after the judgment in revisions filed by the petitioner, he moved the Court for recall of recovery warrant for correction and thereafter an application was filed by the opposite party no. 2 for amendment. Although it has been incorrectly mentioned in the application that amendment be permitted in the plaint (okni=), but it would not make it an application for amendment in the execution application and in fact no amendment has been carried out in the application. In view of the distinct facts, the case of Mohd. Akhtar Siddiqui @ Babr Vs. State of U. P. and others reported in I (2010) DMC 396, does not help the petitioner. In this case after the grant of interim maintenance @ Rs. 400/-, the applicant applied for amendment of the amount claimed in the application u/s 125 Cr. P. C. from Rs. 1,000/- to Rs. 5,000/-.
11. In the impugned order the learned Magistrate has observed that the petitioner has paid Rs. 10,000/- on 24.3.2009 and Rs. 32,100/- on 4.10.2011. The Court clerk in his report dated 29.7.2010 has reported that an amount of Rs. 1,01,400/- was due towards the petitioner and ere that on 22.6.2011 he has applied the Court to correct accounting of the amount due. The learned Magistrate after making adjustment of Rs. 42,100/-, had issued recovery warrant for Rs. 59,300/- only, which cannot, in the facts and circumstances of case, be said to be illegal or contrary to law. The revision filed by the petitioner challenging the order dated 25.9.2012 has also been dismissed.
12. In view of the above, the petition lacks merit and is accordingly dismissed.
(Anil Kumar Sharma, J)
September 03, 2013.
KCS/-
