Manjeet Kaur vs Tej Pratap Singh
2007 Latest Caselaw 348 Del

JUDGMENT

A.K. Sikri, J.

Page 0883

1. Petitioner herein is the legally wedded wife of the respondent. On the allegation that the respondent was not maintaining her, she moved complaint under Section 125 of the Cr.P.C. claiming maintenance from the respondent for herself as well as her two minor children. This complaint was filed on 19.12.1985. Vide order dated 3.6.1991 the learned Magistrate awarded maintenance to the petitioner and her two children @ Rs. 200/- each, i.e. Rs. 600/- per month. On 12.8.1991 she filed execution petition seeking arrears of maintenance. The respondent could not be served in the said proceedings for quite some time as he was absconding and could not be traced. In the month of February 2002, the petitioner came to know that the respondent was working as a P.E.T. Teacher at Umri High School, District Karnal, Haryana. Accordingly, she moved an application for issuing warrants of attachment at the aforesaid address, which were served and the respondent started appearing before the trial court. Thereafter, fresh execution petition was filed by the petitioner on 20.3.2003 for recovery of entire arrears with effect from 19.12.1985 amounting to Rs. 1,22,400/- with the reference of previous execution petition No. 73/1 dated 12.8.1991. The trial court passed the order of releasing Rs. 66,400/- to the petitioner after calculation of the arrears. The amount claimed by the petitioner was reduced as the children had, in the meantime, become major in years 1990 and 1991 respectively. Page 0884 The respondent preferred revision petition against this order under Section 397 of the Cr.P.C. before the learned ASJ, Delhi. The learned ASJ has decided this revision petition vide order dated 8.1.2004 reducing the amount of arrears to Rs. 37,000/- only holding that this was the only amount payable, which was covered within the period of limitation and execution for the rest of the amount had become time-barred. Feeling aggrieved, present petition is filed.

2. It is the contention of the petitioner that the execution was filed on 12.8.1991, which was well within the period of limitation as the maintenance application was decided on 3.6.1991. In this petition warrants of attachment were passed, which were sought to be executed through SHO repeatedly. However, these warrants could not be executed as the whereabouts of the judgment debtor were not known. Only in 2001 when the present address of the petitioner was found, further warrants of attachment were issued through Sub-Divisional Officer, Directorate of Secondary Education and Headmaster of Umri High School, Karnal, where the respondent was working, in April 2002. The money could be realised in respect of this execution filed in 1991 only thereafter and in these circumstances, execution petition filed by the petitioner on 20.3.2003 for entire arrears could not be treated as time-barred. It was submitted that there was no negligence on the part of the petitioner to recover the arrears of maintenance as she was pursuing the execution petition filed on 12.8.1991 diligently throughout and the learned AJS did not consider this aspect, but took into consideration only the date on which second execution petition was filed, i.e. 20.3.2003.

3. Perusal of the order of the learned ASJ would show that he has referred to Section 125(3) of the Cr.P.C. as per which application for recovery of amount under Section 125 is to be filed within a period of one year from the date on which it became due. Relying on the judgments of the Supreme Court in the case of Ganga Prasad v. Gomti 2003 Cr.L.J. 2394 and Savita Kumari Nayak v. Satrughan Nayak 1998 Crl.L.J. 2713, he held that claiming of maintenance beyond a period of one year was, therefore, time-barred. The operative part of the order reads as under:

4. The ld counsel for the respondent does not pick up a conflict to such a calculation but he has otherwise contested the revision petition tooth and nail. He points out that there should be sufficient reason against the revisionist. Again revisionist could not be traced as his whereabouts were not known and other connected applications are pending to enforce the payment. Those applications are not execution petitions nor those applications state that decreetal amount become due from this date to that date. Consequently, those applications cannot be treated as execution proceedings. Had the respondent stated that such and such amount had become due from this date to that date, it could have been treated as execution petition. I find foce in the argument urged by the ld counsel for the revisionist and I accordingly accept the revision petition partly. The respondent has already been given Page 0885 Rs. 20,000/- and she is entitled to get the remaining amount already deposited in the court. The amount be released to both the parties forthwith. Copy of this order be sent to the lower court forthwith Along with its file. The revision file be consigned to the record room.

4. The aforesaid approach of the learned ASJ is clearly erroneous. As noted above, execution petition was filed in the year 1991, which was well within the period of limitation. The petitioner was diligently pursuing this petition. It was only because the respondent remained untraced and could not be served with warrants of attachment, though repeated attempts were made through SHO, that the petitioner could not recover the amount in this execution petition for substantial period. The petitioner had been moving applications for enforcing the payments becoming due. The learned ASJ has held that these applications cannot be treated as execution proceedings. This is to narrow the pedantic approach adopted by the learned ASJ without going into the spirit and purpose of Section 125 Cr.P.C., which is a measure of social legislation and, therefore, has to be construed liberally for the welfare and benefit of the wife and children. The approach of the learned ASJ is in direct conflict with the judgment of the Supreme Court in the case of Shantha @ Ushadevi v. B.G. Shivananjappa 2005 (2) LRC 188 (SC). In almost similar circumstances where main petition filed was pending and kept alive and subsequent interim applications were filed to specify exact amount which accrued due up to that date, the Supreme Court held that those were to be treated as execution proceedings and bar under Section 125 Cr.P.C. would not be applicable. Section 125(3) Cr.P.C. was interpreted by the Supreme Court in the following manner:

7. It is true that the amount of maintenance became due by virtue of the Magistrate's order passed on 20th January, 1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date of the amount became due. In the present case, the application, namely, Crl. Misc. Petition No. 47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed I.A. 1 was filed even when Crl. Misc. Petition 47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl. Misc. Petition of 47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending althrough. The purpose of filing I.A. on 1st September, 1998 was only to mention the amount due up to date. The fact that the additional amount was specified in the I.A. does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent I.A. in 1998 was only to specify the exact date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within the period of limitation. The fact that only a sum of Rs. 5,365/- representing the arrears of eight months was mentioned therein does not curtail the scope of Crl. Misc. Petition filed in 1993 more so when no action was taken thereon and it remained pending.

Page 0886

5. We may also usefully refer to the judgment of the Kerala High Court in the case of Bhagavanthy Radha and Anr. v. Narayanan Kamalasanan 1994 Crl. L.J. 1413. Para 3 of the said judgment narrates the facts of the case:

3. First application was filed on 26-7-1982 for arrears due from 19-7-80 to 19-7-82. It was not beyond time since the earliest monthly Installment of the allowance became due only after August, 1981 when the Sessions Court dismissed the revision petition. A second application was filed on 25-8-83 for the subsequent period (from 19-7-82 to 19-7-83). But both applications were dismissed on 11-11-1983 as the magistrates concerned could not get the defaulter husband. She then repeated her prayer through another application filed on 22- 6-84 in which she claimed arrears from 19-7-80 onwards till the previous month of that application (i.e. 19-5-84). But that also met with the same fate on 24- 1-1985.

6. The High Court held that bar under Section 125(3) of the Cr.P.C. would not be applicable in such circumstances. To appreciate the reasoning given by the Court, one may reproduce the extracts of Section 125(3) of the Cr.P.C.:

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. The word 'levy' occurring therein was interpreted by the High Court in the following manner:

6. ...The application envisaged in the proviso is for levying the amount. The word 'levy' employed in the sub-section means 'to collect by authority or by force' (vide Oxford Advanced Learner's Dictionary of Current English). Once an application is filed it is for the Court to take such steps as may be necessary for Realizing the amount due 'in the manner provided for levying fines'. Sections 421 to 423 of the Code contain provisions for levy of fine. Two modes are prescribed for levy of fine. One is by issuing a warrant for attachment and sale of movable property of the defaulter. Another is by issuing warrant to the Director Collector authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both of the defaulter. When the Court issues warrant to the District Collector, he shall realise the amount 'in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law.' If the amount remained unrealised, Section 125(3) empowers the Magistrate to sentence the defaulter to imprisonment for a term which may extend to one month from each month's allowance or part of it, or until payment.

7. A security of the provisions would indicate that petitioner's duty to make the application (to levy the amount) within one year from the date on which the amount became due and once that duty is discharged it is the function of the Court to take steps on it until it reaches its normal culmination.

Page 0887

8. If a Court dismisses the application to levy the amount without exhausting steps envisaged in the provisions, it would be hard for the petitioner to suffer the consequences. In such circumstances, a second application, is made by the petitioner, must be treated as one for restoration or revival of the earlier application. No time limit can be fixed for making the application for such restoration or revival, though it is desirable that the affected party moves the Court without unreasonable delay. On the first application filed within time the Court has to exhaust steps envisaged in the provisions to levy the amount. If the application happened to be dismissed without exhausting such steps, it would not be a judicial disposal. Such dismissal could only amount to consignment of the application to the records for statistical purposes. The application would then remain in suspended animation albeit the use of the word 'dismissed' stamped on it. It could be resuscitated to life through a subsequent application.

8. We find another reflection on the provisions of Section 125(3) Cr.P.C. by Rajasthan High Court in the case of Purshotam Dass Vanjani v. Asha Rani I (1984) D.M.C. 35, which held that even if the person in whose favor order of maintenance was passed could not approach the Court within one year, it does not take way the moral duty of the person to make payment of maintenance and, therefore, such application should not be dismissed on the ground of limitation. Para 2 of the said judgment, which contains the discussion highlighting this aspect, is as under:

2. The learned Counsel for the petitioner has argued that the amount for the period 1-7-1-77 to 30-6-82 is barred by limitation. According to Section 125(3), the non-petitioner can only claim the amount within a period of one year from the date on which it became due. The court can also issue warrant for the recovery of the unpaid amount, provided an application is made to the court for the recovery of such amount within a period of one year from the date on which it became due. As the non-petitioner has not filed any application for amount due from 1-7-77 to 30-6-82, the Court should not have issued a warrant of attachment for the recovery of the same.' He has also cited law on this point.

9. Similarly, Gujarat High Court has held in Maniben alias Madhuben Motigir Goswami and Anr. v. Manibhai Mohangir Goswami and Anr. 1983 (2) Crimes 64 that liberal interpretation is to be given in favor of wife and where husband was defaulter, first proviso to Section 125(3) Cr.P.C. could not be construed as liberal to rescue the defaulting husband who neglects to honour his obligation for maintenance. Para 3 of the judgment can be profitably referred to:

3. I am afraid, the learned Sessions Judge has not correctly applied the provision of law; though apparently he has stuck to the strict terminology used in the section. This Court (A.M. Ahmadi, J.) in parmar Chimanbhai Ghemabhai v. Pasiben 19 G.L.R. 983, has specifically observed that the provisionis (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 first proviso, Page 0888 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, though ordered by a competent Court. It is of course true that the facts in that case were different, but the principles enunciated would be applicable.

10. In the present case, stated at the cost of repetition, the petitioner had been diligently pursuing her remedy by filing execution petition well in time. If due to deliberate default and omission on the part of the respondent/husband she could not realise this amount earlier, that would not mean that the petitioner is to suffer and if such a course of action is taken, it would give premium to the respondent for his faults. The impugned order is accordingly set aside. The entire claim of the petitioner for arrears is held to be within time. The trial court may initiate necessary process while issuing attachment orders.

11. The petition is disposed in the aforesaid terms.