Allahabad High Court
Vikas Singh vs State Of U.P. And 2 Others on 24 August, 2023
Bench: Anish Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:170894
Court No. - 92
Case :- APPLICATION U/S 482 No. - 28824 of 2023
Applicant :- Vikas Singh
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Ashish Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Anish Kumar Gupta,J.
1. Heard learned counsel for the applicant, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
2. The instant application under Section 482 Cr.P.C. was filed seeking quashing of the entire criminal proceedings of Criminal Misc. Case No. 41 of 2023 (Nilam vs. Vikas), u/S 125(3) Cr.P.C., pending in the court of Principal Judge, Family Court, Hapur.
3. Learned counsel for the applicant submits that in terms of the Proviso 1 to Sub-section(3) of Section 125, Application u/S 125(3) is not maintainable to recover the entire amount of maintenance due in terms of the order passed u/S 125(1). Therefore, the application filed by the applicant is not maintainable at all.
4. Section 125 (3) Cr.P.C. has held as under:
"125. Order for maintenance of wives, children and parents- (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [***], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
5. In support of the submission made by learned counsel for the applicant has relied upon the judgment passed by the Co-ordinate Bench of this Court in Lav Kumar vs. State of U.P. and Another : 2022 0 Supreme (ALL)778. In the said judgement, the Co-ordinate Bench of this Court has held as under:
"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."
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."
7. Having regard to the provisions of Section 125 (3), Proviso 1, the cause of action for recovery of the maintenance amount in terms of the order passed u/S 125(1) is a continuous cause of action. Therefore, the Application u/S 125(3) can be filed by the wife for recovery of the maintenance amount at any time. However, on the said application the maintenance recovery order cannot be passed beyond the period of one year, as has also been held in the aforesaid judgment of the Co-ordiante Bench of this Court in Para '7'.
8. In view thereof, the instant application is misconceived and is hereby dismissed.
Order Date :- 24.8.2023
Shubham Arya
