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Kirparam Chhotan Raot Vs. Smt. Kalibai W/O. Kriparam - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 531 of 1959
Judge
Reported inAIR1960MP241; 1960CriLJ1093
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488(3)
AppellantKirparam Chhotan Raot
RespondentSmt. Kalibai W/O. Kriparam
Appellant AdvocateP.C. Pathak, Adv.
Respondent AdvocateB.P. Pande, Adv.
DispositionPetition dismissed
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....order dated the 7th of august, 1958 passed by the magistrate first class bilaspur, directing the present applicant to pay arrears of maintenance,2. an order directing maintenance to be paid to the non-applicant at the rate of rs. 12/ p.m. was passed against the present applicant on 16-5-1956. the first application for recovery of the arrears of maintenance was filed by mst. kalibai on 2-8-1956. the non-applicant could not be served throughout these proceedings. the application was eventually dismissed on 1-5-1957 for default in appearance on the part of mst. kalibai. another application wad thereupon filed by her on 5-6-1957. the present applicant on being served with a notice raised an objection to the effect that he was willing to maintain the wife at his own house and there was,.....
Judgment:
ORDER

P.R. Sharma, J.

1. This revision application arises out of the order dated the 7th of August, 1958 passed by the Magistrate First Class Bilaspur, directing the present applicant to pay arrears of maintenance,

2. An order directing maintenance to be paid to the non-applicant at the rate of Rs. 12/ p.m. was passed against the present applicant on 16-5-1956. The first application for recovery of the arrears of maintenance was filed by Mst. Kalibai on 2-8-1956. The non-applicant could not be served throughout these proceedings. The application was eventually dismissed on 1-5-1957 for default in appearance on the part of Mst. Kalibai. Another application wad thereupon filed by her on 5-6-1957. The present applicant on being served with a notice raised an objection to the effect that he was willing to maintain the wife at his own house and there was, therefore, no just ground for her to refuse to five with him. It may be noted at this stage that the husband had by this time contracted a marriage with another wife. The proceedings thereafter continued for a number of hearings and were eventually terminated on 12-3-1958 by an order of dismissal for default in appearance on the part of Mst. Kalibai. A third application was, thereafter, presented by Mst. Kalibai on 31-3-1958 for realisation of the arrears. The husband at this time raised another objection, namely, that the application having not been presented within one year from the date on which the amount or maintenance claimed fell due, a warrant for its recovery could not be issued against him. The learned Magistrate overruled this contention and an application in revision preferred before the Court of Sessions also met a similar fate. The applicant has now come up in revision before this Court.

3. The only point urged by the learned counsel for the applicant in support of this revision is that by virtue of the second proviso to Sub-section (3) of Section 488 Cr. P. C., the present application could not have been entertained. The proviso on which reliance was placed by the learned counsel for the applicant runs as under:

'Provided, further, 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.'

4. It was not disputed before me that the first two applications filed by Mst. Kalibai for realisation of the arrears of maintenance were filed within the period of one year from the date on which maintenance first became due. I am of opinion that it cannot under the circumstances be said with reason that no application was made at all to the Court for the levy of the amount within the prescribed period. It will be repugnant to all notions of justice to hold that the limitation prescribed by law would continue to run during the pendency of proceedings till a warrant for realisation of the amount claimed is actually issued. The dismissal for default in appearance of an application praying for issue of a warrant cannot, in my opinion, render the application non-existent even for the purposes of satisfying the condition as to limitation laid down in the aforesaid proviso,

5. All subsequent applications must, in my opinion, be deemed, for the purpose of the question of limitation, to be in continuation of the first.

6. For the reasons aforesaid I do not see any force in this revision. It is hereby dismissed.


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