@ Ushadevi & Anr Vs. B.G.Shivananjappa  Insc 320 (6 May 2005)
Reddi & A.K. Mathur
out of S.L.P.(Crl.)No.5723 of 2004) A.K. MATHUR, J.
facts giving rise to this appeal are that the appellant, Shantha @ Ushadevi and
Kusuma, a minor represented by her mother-guardian filed a petition under
Section 125 of the Code of Criminal Procedure being Criminal Petition No.2 of
1991 before the trial Court against respondent claiming for maintenance. The
said criminal petition was allowed by the trial court by its order dated January 20, 1993 awarding a sum of Rs.500/- to the
appellant, the wife of the respondent and a sum of Rs.300/- to Kusuma, the
daughter for maintenance. The appellant filed Criminal Miscellaneous Petition
No.47 of 1993 under Section 125(3) of the Code of Criminal Procedure claiming
an amount of Rs.5,365/- as arrear maintenance calculated from January 20, 1993 (i.e. the date of the trial court's
order granting maintenance) to August 31, 1993.
Respondent filed a criminal revision before the Sessions Judge, Tumkur being Crl.
Revision Petition No.35 of 1993 against the order passed by the trial court.
This revision petition was dismissed by the Sessions Judge by its order dated June 26, 1997 affirming the order passed by the
trial court. Thereafter, the respondent took up the matter before the High
Court of Karnataka at Bangalore by filing a criminal revision
petition being Cr.R.P.No.2297 of 1997 against the order passed by the Sessions
Judge, Tumkur on June
26, 1997. The said
revision petition was dismissed by the High Court.
the affirmation of the order by the High Court, an interim application being
I.A.1 was filed in Criminal Misc. Petition No.47 of 1993 claiming arrears of
maintenance for the period from January 20, 1993 i.e. the date of the trial
court's order till the date of filing the I.A. 1. i.e., 16th June, 1998 for a sum of Rs. 46,000/-. The
respondent deposited a sum of Rs.5,365/- towards the maintenance from January 20,1993 till August 31, 1993.
IA-1 filed by the appellant for arrears of maintenance in Crl. Misc. Petition
No.47 of 1993 claiming maintenance of Rs.46, 000/- was objected by the
respondent contending that the appellant cannot claim arrears of maintenance
beyond a period of one year under first proviso to Section 125(3) of the Code
of Criminal Procedure being barred by limitation. The trial court by its order
dated July 13, 2000 dismissed the IA-1 being barred by
limitation. The appellant thereafter filed a criminal revision which came to be
registered as Criminal Revision Petition No.194/ 2000 before the learned
Sessions Judge, Tumkur. The said criminal revision petition was allowed by the
learned Sessions Judge by its order dated November 23, 2002 and the matter was remanded back to
the trial court. Learned Sessions Judge observed that there was no need of
filing a fresh petition during the pendency of the application under Section
125(3) Cr. P .C. for maintenance which has fallen due for the period post application
and it is implicit in the powers of the court to make an order directing the
husband to make payment of arrears of maintenance up to the decision while
disposing of the application for recovery of arrears of maintenance. The
learned Sessions Judge further observed that it is not required to file a fresh
application which may lead to multiplicity of litigations.
Sessions Judge further held that the I.A.1 filed in Criminal Misc. Petition
No.47 of 1993 claiming maintenance was within limitation. Aggrieved against
this order of the learned Sessions Judge, respondent filed criminal revision
being Crl. R .P. No.753 of 2003 before the High Court of Karnataka at Bangalore. The High Court allowed the
criminal revision and set aside the order of the learned Sessions Judge holding
that the said application was barred by limitation. Aggrieved against this
order of the High Court passed in Criminal Revision Petition No.753 of 2003 on March 11, 2004 the present Special Leave Petition
was filed by the appellants.
submitted before the learned Single Judge of the High Court that under proviso
to sub-section (3) of Section 125 of the Code of Criminal Procedure no warrant
can be issued to levy the amount due beyond a period of one year. Therefore,
the application i.e. I.A.No.1 filed in Crl. Misc. Petition No.47 of 1993 is
barred by limitation. However, Crl. Misc. Petition No.47 of 1993 for recovery
of the amount of arrears was allowed to the extent of Rs.5600/- for the period
from January 20, 1993 to August 31, 1993 i.e. for a period of eight months. Subsequently, I.A.1 was
filed on 16th June,
1998 for recovery of
arrears from January
20, 1993 till the date
of its filing, i.e. 16th
was objected to by the respondent-husband. Learned Single Judge of the High
Court after considering the matter took the view that the arrears from
September 1, 1993 to June 16, 1998 was barred by limitation and therefore,
reversed the judgment of the learned Sessions Judge who had opined that there
was no need for the appellants to file I.A.1 during the pendency of the
Criminal Miscellaneous petition No.47 of 1993 as the appellants were entitled
to the arrears of maintenance right from the date the Magistrate passed the
have heard learned counsel for the parties and perused the records. The facts
that emerge are that by an order dated 20th January, 1993, passed by the
Judicial Magistrate of Class I, Gubbi, the appellant No.1 was granted
maintenance at the rate of Rs.500/- per month for herself and Rs.300/- for her
minor daughter. This order of grant of maintenance was affirmed by the High
Court when the revision petition filed against this order was dismissed by the
High Court on December
order to recover the amount, as per the order of the Judicial Magistrate, the
appellant filed Crl. Misc. Petition No. 47 of 1993 on 1.9.1993 showing the
arrears of maintenance for the period of eight months. During the pendency of
revision petition in the Sessions Court and the High Court, the respondent did
not pay any amount nor did the Magistrate issue a warrant in terms of section
125(3). After the disposal of the matter by the High Court, the appellant filed
an I.A. being I.A. No. 1 in Crl. Misc. Petition No. 47 of 1993 seeking recovery
of an amount of Rs. 46,700/- being arrears due after the date of filing the
petition, being the arrears due from the Trial Court's Order (20th January,
1993) till the date of filing the I.A., i.e., 16th June, 1998.
the filing of the said I.A., the respondent deposited an amount of Rs. 5,365/-
towards arrears due for a period of eight months, i.e., from 20th January, 1993 to 31st August, 1993. The respondent-husband took the stand that no further
amount was payable as the I.A. filed on 1st July, 1998 was barred by limitation under the
first proviso to Section 125(3) Cr.P.C. According to the respondent, the
arrears of maintenance for the said period of eight months only were
recoverable under Section 125(3), in view of the Crl. Misc. Petition No. 476 of
1993 filed on 1.9. 1993 wherein the issuance of warrant was sought for recovery
of a sum of Rs. 5,365/- due for about eight months. As already noticed, the
learned Magistrate dismissed I.A.1 of 1998 on the ground of limitation.
However, the learned Sessions Judge having held that the bar of limitation did
not apply, remitted the matter to the Trial Court for fresh disposal on a
revision filed in the High Court by the husband, the present impugned order was
passed allowing the revision and restoring the order of the Trial Court.
appreciate the question whether the bar of limitation under the proviso to
Section 125(3) is attracted in the light of the facts of the present case, a
reference to the said provision is necessary:
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 (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:
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:
xx xx xx
. "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 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 in Crl.
Misc. Petition No. 47 of 1993 wherein the arrears due up to that date were
calculated and sought recovery of that amount under Section 125 (3). Thus, 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 upto
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 amount
which accrued due upto that date.
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.
are, therefore, of the view that in the peculiar circumstances of the case, the
bar under Section 125(3) cannot be applied and the High Court has erred in
reversing the order of Sessions Judge. It must be borne in mind that Section
125 Cr. P.C. is a measure of social legislation and it has to be construed liberally
for the welfare and benefit of the wife and daughter. It is unreasonable to
insist on filing successive applications when the liability to pay the
maintenance as per the order passed under Section 125(1) is a continuing
the above reasons, we set aside the impugned order of the High Court and
restore the order passed by the Additional District Judge, Tumkur in Crl. R.P.
No. 194 of 2000.
learned Magistrate shall take appropriate steps under Section 125 (3) in case
the arrears of maintenance is not paid within three months.