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Shankar Deo Nigam Vs. Smt. Savitri Devi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1974CriLJ135
AppellantShankar Deo Nigam
RespondentSmt. Savitri Devi
Cases ReferredIn Kirparam Chhotan Raot v. Smt. Kalibai
Excerpt:
- - ma po byu (1936) 37 cri lj 91 (b)(rang) it was held that the proviso to section 488 (3) of the criminal procedure code was clearly enacted to prevent the person in whose favour an order for maintenance was made, from being negligent and allowing arrears to pile up until their recovery would become a hardship or an impossibility......be effective only for a sum of rs. 480/-. criminal revision no. 184 of 1971 has been filed by smt. savitri devi opposing the reference,2. the relevant facts giving rise to this reference are that smt. savitri devi filed an application under section 488 of the code of criminal procedure for maintenance against her husband shanker deo nigam, and on 19-12-1966 the magistrate directed shanker deo nigam to pay the allowance at the rate of rs. 40/- per mensem effective from the date of the order. on 26-2-1969 smt. savitri devi applied for execution of the order in the court of sri s. m. abbas that her husband had paid her nothing towards her maintenance since the date of the order and prayed that the order for maintenance be enforced against her husband. she had claimed a sum of rupees 1,040/-.....
Judgment:

Onkar Singh, J.

1. This is a reference by Civil and Sessions Judge, Lucknow, recommending that the order dated 28-11-1969 passed by Sri S. M. Abbas, a Magistrate of the First Class, Lucknow, in Criminal Case No. 51 of 1969 under Section 488, Criminal P. C. be modified to be effective only for a sum of Rs. 480/-. Criminal Revision No. 184 of 1971 has been filed by Smt. Savitri Devi opposing the reference,

2. The relevant facts giving rise to this reference are that Smt. Savitri Devi filed an application under Section 488 of the Code of Criminal Procedure for maintenance against her husband Shanker Deo Nigam, and on 19-12-1966 the Magistrate directed Shanker Deo Nigam to pay the allowance at the rate of Rs. 40/- per mensem effective from the date of the order. On 26-2-1969 Smt. Savitri Devi applied for execution of the order in the Court of Sri S. M. Abbas that her husband had paid her nothing towards her maintenance since the date of the order and prayed that the order for maintenance be enforced against her husband. She had claimed a sum of Rupees 1,040/- towards maintenance and Rs. 100/- as costs of the case.

3. This application was contested by Shanker Deo Nigam and his objection was two fold : It was alleged firstly that he and Smt. Savitri Devi had compromised the matter between them since the order granting maintenance and after that compromise the maintenance order passed against him had spent itself and had become non-existent and secondly that the order was not enforcible as barred by limitation.

4. The defence of Shanker Deo Nigam did not find favour with the learned Magistrate who directed him to pay a sum of Rs. 1,180/-, though it should have been Rs. 1,140/-, to Smt. Savitri Devi towards the allowance for her maintenance for the period 19-12-1966 to 19-2-1969. Aggrieved by this order he filed a revision in the Court of the Sessions Judge which was transferred to the Civil and Sessions Judge who by his order dated 20-5-1971 held that Smt. Savitri Devi was entitled to a sum of Rs. 480/- only, the amount due for maintenance for the period of twelve months preceding the date of application for enforcement. He accordingly made a reference to this Court for modifying the order to the extent indicated above.

5. Aggrieved by this order Smt. Savitri Devi has also filed a revision op-posing the order of reference passed by the Civil and Sessions Judge and for maintaining the order of the learned Magistrate.

6. I have heard the learned Counsel for the parties and in my opinion the reference is misconceived and should be rejected and the revision filed by Smt. Savitri Devi be allowed. In her application dated 26-2-1969 Smt. Savitri Devi has claimed a sum of Rs. 1,040/- as arrears of maintenance from 19-12-1966 to 19-2-1969 and Rs, 100/- as costs of the case awarded to her by Sri Sadhu Singh, Magistrate First Class, Lucknow. The first execution application was moved by Smt. Savitri Devi on 10-2-1967. Her husband filed a revision against the order of the Magistrate dated 19-12-1966 and got the proceedings stayed. The revision was dismissed by the Sessions Judge and he filed a revision against that order in this Court which was also dismissed. The second application for execution was made on 22-12-1967. The fate of that application is not clear from the record but it is immaterial because a third application for execution was made on 5-1-1968, Le. within twelve months from the first execution application. The third execution application was compromised on 26-6-1968 and the proceedings were dropped. Again she gave an application for execution of the order on 14-8-1968. This application was dismissed for default and finally she moved an application on 26-2-1969. It will thus appear that Smt. Savitri Devi has been making applications for recovery of arrears of maintenance within a year of each other from 19-12-1966. It appears that the learned Sessions Judge has allowed himself to fall in error by misreading proviso 2 to Sub-section (3) of Section 488 of the Criminal Procedure Code by holding that Smt. Savitri Devi was entitled to a sum of Rs. 480/- only as maintenance for the period of twelve months preceding the date of application of enforcement and thereby holding that the rest of the claim had become time-barred. Proviso 2 of Sub-section (3) of Section 488 of the Criminal Procedure Code reads:

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. It is clear from a reading of the above proviso that it enacts 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. Thus the period of limitation is one year. Any arrear falling beyond one year is barred by limitation.

8. In U. Hpay Latt v. Ma Po Byu (1936) 37 Cri LJ 91 (B)(Rang) it was held that the proviso to Section 488 (3) of the Criminal Procedure Code was clearly enacted to prevent the person in whose favour an order for maintenance was made, from being negligent and allowing arrears to pile up until their recovery would become a hardship or an impossibility. It was not meant that a loophole should be given to the person against whom an order for maintenance was made to evade payment by preventing the service of process on him. In fact the proviso was evidently worded in the way it was, expressly to preclude the possibility of such an evasion. In that case the wife had applied for maintenance for four months. Since the husband could not be traced, the application was dismissed. She again applied for maintenance, in arrears for fifteen months. It was held that a warrant could be issued for the whole period and the order of maintenance of fifteen months was correct.

9. In Chetibai v. Naroomal Shehoomal AIR 1938 Sind 151 : 39 Cri LJ 847 it was held that proviso to Sub-section (3), Section 488 means that a person in whose favour an order for maintenance has been made must, to enable her to recover arrears of maintenance, apply to the Court to recover such arrears within one year from the date the arrears became due. Such person cannot allow arrears to accumulate indefinitely and apply for the recovery of those arrears for the first time after several years. In that case the learned Magistrate had held that under Section 488 of the Criminal Procedure Code, claim for maintenance allowance has to be enforced for a period of twelve months and not more. It was held by their Lordships that the learned Magistrate had allowed himself to fall into error by misreading proviso 2 to Sub-clause (3) of Section 488, Criminal Procedure Code. In that case also successive applications for recovery of arrears of maintenance had been made by the applicant within a year of each other. In Jagat Bandhu Sahu v. Lakshmi Dei 0065/1958 : AIR1958Ori257 the wife applied for the realisation of arrears of maintenance due. The claim included also a certain amount which was for a period more than one year old from when it fell due. But in the application it was stated by the wife that the sum had already been claimed* by her in an application brought within time but it could not then be realised. It was held that under these circumstances the application should be taken to be the continuation of the previous application upon which it was not possible to realise the amount due to the inability of the Court. The claim was therefore not barred by limitation and the Magistrate was justified in issuing a warrant for realization of the arrear of the maintenance. The limitation provided in the second proviso to Sub-section (3) should not be so construed as to give a loop-hole for a negligent husband to avoid payment in the first instance and, then, by evading appearance before the Court when the application is made raise the plea of limitation.

10. In Kirparam Chhotan Raot v. Smt. Kalibai : AIR1960MP241 it was held that dismissal for default of appearance, of an application for warrant for recovering arrears of maintenance cannot render the application non-existent for the purposes of satisfying the condition as to limitation laid down in Section 488 (3), proviso 2. Hence where an application for levy of maintenance is made within the period of one year mentioned in the proviso, but is dismissed for default, another application made subsequently for the same purpose, may be granted, although such application may have been made after the period of one year mentioned in the proviso.

11. In the instant case the order under Section 488 (1) of the Criminal Procedure Code was made on 19-12-1966 and Smt. Savitri Devi was awarded maintenance at the rate of Rs. 40/- per mensem to be effective from the date of the order. The first execution application was made on 10-2-1967 and she had claimed Rs. 140/-, that is, Rs. 40/- as arrears of maintenance and Rs. 100/- as costs of the case. A revision was filed against that order by her husband and the proceedings were stayed by the Sessions Judge and after the dismissal of the revision by the Civil and Sessions Judge, Shanker Deo Nigam filed a revision in this Court and the proceedings were stayed. Successive applications for recovery of arrears of maintenance had been made by Smt. Savitri Devi within a year of each other from 19-12-1966 to 26-2-1969. I am, therefore, of the opinion that no part of the claim had become time-barred and the order of the Sessions Judge is incorrect. The learned Sessions Judge has not given any reason for holding that she was entitled to a sum of Rs. 480/- only and why the rest of the amount had become barred by limitation.

12. I accordingly reject the reference and allow the revision application and set aside the order of the learned Civil and Sessions Judge and uphold and restore the order of the learned Magistrate dated 28-11-1969.


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