Jharkhand High Court
Balram Mahto vs The State Of Jharkhand on 20 September, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2431 of 2022
Balram Mahto ...... Petitioner
Versus
1.The State of Jharkhand
2.Fulo Devi
3. Jawahar Lal Mahto
......Opposite Parties
---------
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---------
For the Petitioner : Mr. Manoj Kr. Sah, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
02/Dated: 20/09/2022
This petition has been filed for quashing of order dated 21.04.2022
passed in Original Maintenance Case No. 93 of 2009, whereby the learned Principal
Judge, Family Court, Godda has ordered to issue Distress Warrant against the
petitioner and accordingly, Distress Warrant has been issued on 25.04.2022.
2. Learned counsel for the petitioner submits that petitioner filed show
cause stating therein that under Sub section 3 of section 125 Cr.P.C. O.P. No. 2 is
entitled for arrear of maintenance for one year.
3. On the other hand, learned counsel for the State submits that in the
light of section 128 Cr.P.C. the case is maintainable and the learned court has rightly
proceeded.
4. Reference may be made to the judgment in the case of Madras P. Vaithi
v. Kanagavalli & another, in Criminal Revision Case No. 1237 of 2009 and
M.P. No.1 of 2009, decided on 02.02.2010 wherein Section 125(3) Cr.P.C. and
Section 128 Cr.P.C. have been discussed.
5. So far as Section 125(3) Cr.P.C. is concerned, limitation is prescribed
therein and the punishment is also prescribed in the said statute. However, the wife of
the petitioner namely, Fulo Devi is having remedy under Section 128 Cr.P.C. There is
no limitation prescribed under Section 128 Cr.P.C., which is meant for recovery of the
amount that may be the reason for legislature for not providing such a period of
limitation. The O.P. No. 2 who is wife of petitioner cannot be allowed to be remedy
less if such a petition was filed belatedly. Section 128 Cr.P.C. is meant for recovery of
the amount and there is no period of limitation prescribed therein.
6. Paragraph 6 of the judgment rendered by the Madras High Court in the
case of P. Vaithi v. Kanagavalli & another, in Criminal Revision Case No. 1237 of 2009
and M.P. No.1 of 2009 is quoted herein below:
"6. After an order is passed directing to pay maintenance, the party in whose
favour such an order has been passed has got two options to work out to recover
the arrears from the other. He can choose to approach the court under Section
125(3) Cr.P.C. requesting the court to punish the defaulter by imposing appropriate
imprisonment. On the other hand, he can also approach the court under Section
128 of Cr.P.C. seeking to recover the amount due under the maintenance order. A
comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any
pale of doubt that in so far as the proceeding under Section 125(3) is concerned,
the statuete has prescribed a period of limitation of one year, whereas in respect of
a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all.
This is because, while exercising the power under Section 125(3) Cr.P.C. the action
being essentially a criminal in nature, resulting in punishment of imprisonment, the
legislature has perhaps, thought it fit to provide such a period of limitation of one
year 3 to file a petition. Since, while enforcing an order under Section 128 of
Cr.P.C. for recovery of the amount, there is no question of straight away imposing
such a punishment of imprisonment and that may be the reason for the legislature
not to provide for such a period of limitation. Therefore, to put it in nutshell, for
initiating a proceeding for enforcing an order by invoking Section 128 of Cr.P.C.,
absolutely, I find no provision providing for limitation as it is provided in respect of
proceedings under Section 125(3) of Cr.P.C. In the case on hand, the petition was
filed under Section 128 of Cr.P.C. Though it was filed beyond one year, in my
considered opinion, the lower court was right in entertaining the same as the same
is not barred by any limitation."
7. In view of the above facts, the Court sitting under Section 482 Cr.P.C.
thinks it proper to direct the wife of petitioner, O.P. No. 2 to file a petition under
Section 128 Cr.P.C. before the learned court. If such petition is filed by the O.P. No. 2,
the concerned court will consider such petition and take a decision, in accordance with
law. The learned court will intimate this order to O.P. No. 2 for the needful.
8. With the above observations and directions, this petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
