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Hagiri Dei and anr. Vs. Budhiram Behera - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in54(1982)CLT25; 1982CriLJ491
AppellantHagiri Dei and anr.
RespondentBudhiram Behera
Cases ReferredMahomed Hussein Abdul Kadar Shaikh Bhikan v. Emperor
Excerpt:
.....125, the division bench of this court on the writ petition filed by the husband confined the claim to rs, 360/-.i. 8. the court does not enforce more than one year's arrears and the applications filed on 20-11-79 therefore were clearly not maintainable......pay the arrears by instalments and the magistrate granted his prayer. sometime later, the opposite party filed objection contending that in view of the fact that he had been adjudged insolvent, his liability ceased to exist and was wiped out and moreover, the applications were barred, the dues being of a period beyond one year next preceding the date of the filing of the application. his contention was that the applications having been filed on 20-11-1979, dues for any period before 20-11-1978 was not realisable. the learned magistrate having rejected the petitions, the petitioners filed three revisions (criminal revisions nos. 437 to 439 of 1980) arising out of the three miscellaneous cases.the point involved being the same, the three revisions have been heard analogously.4. mr. sutar,.....
Judgment:
ORDER

R.C. Patnaik, J.

1. petitioner No. 1 is the wife and petitioner No. 2 is the daughter of opposite party, on ground of neglect by the opposite party, the petitioners filed an application Under Section 125 of the Criminal P. C. in the court of the Sub-Divisional Judicial Magistrate, Balasore, which was registered as Misc. Case No. 128 of 1972. By order dated 7-11-1973, the petitioner No. 1 was granted maintenance of Rs. 20/- per month and petitioner No. 2, Rs, 10/-.

2. As the opposite party committed default in payment, the petitioners filed Misc. Case No. 392 of 1975 Under Section 488(3) of the Criminal P. C. 1898, corresponding to Section 125(3) of the new Code for dues of 18 months from the date of order. Order having been passed against the opposite party, a revision was carried by him to the Sessions Judge and being unsuccessful there, he filed a writ petition before this Court in o. J. C. No. 216 of 1977. It was contended therein that the opposite party having been adjudged insolvent subsequent to the proceeding, his liability did not exist and stood wiped out and having regard to the period of one year fixed under the proviso to Sub-section (3) of Section 488, within which the application should be made (calculating from the date on which the amount became, due), no action could be taken against the opposite party for the dues of the period exceeding one year. this Court held (on the question of insolvency):-

Mr. Murty for the petitioner contends that subsequent to the proceedings, petitioner has been adjudged insolvent. There is no material on record to support this stand. We, are, therefore, not prepared to go into this-question though we agree with Mr. Murty that if there be any adjudication of insolvency, the liability would be wiped out....

On the question whether a part of the liability was barred, this Court held:-.the learned Magistrate had no justification to treat the period of default as 18 months prior to the making of the application. There seems to be force in this submission. The proceeding should have, therefore, been taken for a period of one year's default i. e. for Rs. 360/- in all.

3. Thereafter, on 20-11-79. the petitioners filed three petitions Under Section 125(3) of the Criminal P. C. 1974, for realisation of maintenance due for-(he periods from 1-9-75 to 1-9-76: from 1-9-76 t0 1-9-1977 and from 1-9-77 to 1-9-78. These applications were registered as Misc. Cases Nos. 531, 530 and 528 of 1971) respectively. The opposite party appeared in the said case on 14-3-1980 and made a prayer for permission to pay the arrears by instalments and the Magistrate granted his prayer. Sometime later, the opposite party filed objection contending that in view of the fact that he had been adjudged insolvent, his liability ceased to exist and was wiped out and moreover, the applications were barred, the dues being of a period beyond one year next preceding the date of the filing of the application. His contention was that the applications having been filed on 20-11-1979, dues for any period before 20-11-1978 was not realisable. The learned Magistrate having rejected the petitions, the petitioners filed three revisions (Criminal Revisions Nos. 437 to 439 of 1980) arising out of the three miscellaneous cases.

The point involved being the same, the three revisions have been heard analogously.

4. Mr. Sutar, learned Counsel for the petitioners,- submitted that the opposite party having agreed to pay the dues by instalments and an order having been passed on the basis of his concession, his objection at a later stage on the question of limitation was not maintainable.

5. Mr. D. S. Nanda, learned Counsel for the opposite party, submits that the dues being for a period beyond one year next preceding the date of application, the application in each of the cases wre not maintainable. The three applications which relate to the period from 1-9-1975 to 1-9-1978 were filed on 20-11-1979. So, the dues did not relate to a period within one year next preceding the date of application. The applications were, therefore, clearly barred and the Magistrate had no jurisdiction to entertain the applications, or take any action under Sub-section (3) of Section 125, The Division Bench of this Court on the writ petition filed by the husband confined the claim to Rs, 360/-. i. e., for the period of one year next preceding the date of application. He further urged that adjudication of the opposite party as an insolvent wiped out his liability and the maintenance order was not executable and the petitioners were not entitled to realise any amount to its maintenance. He relied on the observation of this Court in the judgment inter partes:-. if there be any adjudication of insolvency, the liability would be wiped out ....

In answer to this Mr. Sutar submitted that adjudication did not wipe out the order of maintenance passed Under Section 125 of the Criminal P. C. He drew attention to three decisions of the English Courts in the cases of Kerr v. Kerr ((1897) 2 QB 439); Linton v. Linton ((1885) 15 QB 239) and Prescott v. Prescott ((1868) 20 LT 331) and submitted that the payment ordered by the Court to be made by a husband to his wife during subsistence of marriage was not a debt due to his wife and payment of maintenance not being a debt, adjudication of the husband as insolvent had no effect on the order passed Under Section 125 Cr. P. C. He further submitted that bankruptcy does not relieve the husband of his liability to maintain his wife. He further referred to the decision of the Allahabad High Court in the case of pt. Shyama Charan v. Mt. Anguri Devi AIR 1938 All 253 : (1938) 39 Cri LJ 5531 where it has been held:-. The mere fact that husband has been adjudicated as insolvent does not show that he is unable to pay for the maintenance of his wife or that that constitutes sufficient cause for non-payment....

Chief Justice Beaumont in the case of Mahomed Hussein Abdul Kadar Shaikh Bhikan v. Emperor AIR 1940 Bom 344 : 1941 (42) Cri LJ 101 followed the Allahabad decision and held that the protection given by the Insolvency Act did not protect' the insolvent against the special statutory power of committal given to Criminal Court Under Section 488 (now Section 125). The Bombay decision was followed by Ramaswami, J. in Kandaswami Moopan's case : AIR1960Mad348 : (I960 Cri LJ 1098). Mr. Sutar submitted that the observation of the Division Bench was an order and should not be treated as a considered opinion of the Bench as the writ petition was disposed of on a different ground.

6. As I am disposing of these revisions on the ground of limitation, I express no final opinion on the question whether insolvency wipes, out liability of the father or husband or son Under Section 125 of the Criminal P. C. though, to me, there appears to be much force in the contention of Mr. Sutar.

7. The first proviso to Sub-section (3) of Section 125 Cr. P. C. is clear and unambiguous, Acquiescence of the opposite party cannot confer jurisdiction on the Magistrate to enlarge the same, in certain circumstances, an application can be made for a period beyond one year, e. g., where a pending application has been closed for statistical purposes and fresh application is filed for the period covered by the earlier application and the period subsequent thereto etc.

The proviso has been enacted to prevent person in whose favour an order for maintenance has been made from being negligent and allowing the arrears to pile up so that their recovery becomes a hardship so far as the person from whom recovery is to be made is concerned.

8. The Court does not enforce more than one year's arrears and the applications filed on 20-11-79 therefore were clearly not maintainable.

In the result, the revisions are dismissed.


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