Allahabad High Court
Lav Kumar vs State Of U.P. And Another on 13 May, 2022
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment Reserved On 28.4.2022
Judgment Delivered On 13.05.2022
Court No. - 91
Case :- APPLICATION U/S 482 No. - 20081 of 2021
Applicant :- Lav Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mohammad Sakir,Pankaj Kumar Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
2. This criminal misc. application U/s 482 Cr.P.C. is filed to quash the impugned order dated 05.08.2021 passed by Principal Judge Family Court, Bijnor in case no.868 of 2019 (Sudha Devi vs. Lav Kumar) under Section 128 Cr.P.C. By the impugned order, the learned court below has allowed the application U/s 128 Cr.P.C. filed by opposite party no.2 for recovery of arrears of Rs.36,000/- from 06.01.2011 to 06.01.2013 and consequently issued recovery warrant.
3. The opposite party no.2 instituted a proceeding under Section 125 Cr.P.C. for maintenance which was allowed on 19.01.2000 and Rs. 500/- per month maintenance allowance was granted in favour of the opposite party no.2. Later on she moved an application No.71 of 2005, under Section 127 Cr.P.C. for enhancement of maintenance and this application was allowed on 25.11.2009 and maintenance was enhanced from Rs. 500/- to Rs. 3000/- per month. Thereafter the opposite party no.2 moved an application no.14 of 2013 under Section 128 Cr.P.C. for recovery of arrears of maintenance from 06.01.2011 to 06.01.2013 i.e. 24 months @ Rs.3000/- per month total amounting to Rs. 72,000/- on 12.02.2013. Learned Magistrate after considering the entire evidence and material on record allowed this application in part for recovery of entire one year maintenance allowance of Rs.36,000/- and refused to recover the remaining 12 months arrears of Rs.36,000/- observing that it has become time barred. The opposite party no.2 again moved an application No.406 of 2014 U/s 128 Cr.P.C. for recovery of arrears of maintenance allowance from 06.01.2012 to 06.01.2013 i.e.12 months of Rs.36,000/- before the family court, Bijnor. This application was rejected by the Principal Judge, Family Court on the ground that earlier this point has been decided and no fresh order is required. Thereafter, the opposite party no.2 moved another application No.868 of 2019 on 25.10.2019 under Section 128 Cr.P.C. for recovery of balance amount of arrears of maintenance allowance from 06.01.2011 to 06.01.2013 of Rs. 36,000/- for 12 months. It is alleged in that application that earlier an application was moved for recovery of arrears from 06.01.2011 to 06.01.2013 for total amounting of Rs.72,000/- but the learned trial court has awarded only one years arrears maintenance amounting to Rs.36,000/-. Hence remaining arrears of maintenance for one year amounting to Rs. 36,000/- is still due from the applicant. The learned Principal Judge, Family Court by the impugned order has allowed the aforesaid application and has issued the recovery warrant for recovery of arrears of Rs.36,000/- against the applicant.
4. The contentions of learned counsel for the applicant are that the impugned order is apparently perverse, illegal, arbitrary and bad in the eye of law. The court concerned has earlier refused to recover the two years arrears of maintenance allowance observing that only one year arrears can be recovered and has refused to recover the arrears from 06.01.2011 to 06.01.2012. Recovery of Rs.36,000/- arrears from 06.01.2012 to 06.01.2013 has already been made. The opposite party no.2 moved another application for recovery of remaining amount of Rs. 36,000/- which was rejected on 11.12.2013. But the learned Principal Judge, Family Court on the subsequent application has reviewed the previous order and in illegal manner has allowed the application.
5. The learned AGA not disputed the aforesaid facts.
6. It is admitted fact that monthly maintenance of Rs.3000/- was granted in favour of opposite party no.2 on 25.11.2009. She moved an application for recovery of arrears from 06.01.2011 to 06.01.2013 for 24 months total amounting to Rs.72,000/- on 12.02.2013. This application was partly allowed for recovery of only one year arrears from 06.01.2012 to 06.01.2013 and it was also held that under provisions of law as the application has been moved on 12.02.2013 only one year of maintenance prior to the date of application can be recovered and the court issued recovery warrant for recovery of maintenance from 06.01.2012 to 06.01.2013 of Rs.36,000/- only. The second application moved by the opposite party no.2 was also rejected on the aforesaid ground. The opposite party no.2 thereafter moved a third application which has been allowed by the Principal Judge, Family Court.
Section 125 (3) Cr.P.C. provides as follows:
"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."
7. From the aforesaid provisions, it is clear that for recovery of arrears the application is maintainable only to the extent of one year prior to the filing of application. The maintenance holder cannot be permitted to accumulate the maintenance for a period more than 12 months and as such no application for execution of maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application.
8. Considering the aforesaid provision of law, the learned Magistrate vide his order dated 12.02.2015 has allowed the application in part only for recovery of arrears of maintenance for one year i.e. from 06.01.2012 to 06.01.2013 and Rs.36,000/- was recovered and the application was dismissed for recovery of arrears of maintenance from 06.01.2011 to 06.01.2012. The learned Principal Judge Family Court has failed to consider the legal provisions in this respect and has misinterpreted the previous orders and the law. The arrears of maintenance from 06.01.2011 to 06.01.2012 has become irrecoverable. So the impugned order suffers from manifest illegality, no recovery warrant could have been issued against the applicant for recovery of arrears of maintenance which has become time barred. The impugned order is not sustainable and is liable to be set aside.
9. Accordingly, the application is hereby allowed and the impugned order dated 05.08.2021 passed by Principal Judge, Family Court in case no.868 of 2019 (Sudha Devi vs. Law Kumar) under Section 128 Cr.P.C. is hereby quashed.
Order Date:- 13.05.2022
C.Mani
