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Maniben and anr. Vs. Manibhai Mohangir Goswami and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1983CriLJ1935; (1983)1GLR394
AppellantManiben and anr.
RespondentManibhai Mohangir Goswami and anr.
Cases ReferredIn Kirparam Chhotan Raot v. Smt. Kalibai
Excerpt:
.....code old was clearly enacted to prevent the persorn 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. i fully concur with the above cited decisions, that if an earlier application for recovery of amount of maintenance filed by the wife under section 125(3) of the code is dismissed for default, it would not debar the wife from claiming that amount in another application as well the amount which would remain in arrears if the second application is also within one year of the dismissal of the earlier application, or there is no negligence on the part of the wife......5 of 1976 for maintenance for herself and her minor son. the said application was dismissed by the learned magistrate on 12-1-1976. thereafter, the wife filed criminal revision application no. 78 of 1977 before the learned additional sessions judge, baroda who set aside the order of the learned magistrate and allowed the maintenance application by his order dated 6-6-1978, and the husband was ordered to pay maintenance at the rate of rs. 100/- per month to the wife and rs. 50/- per month to the minor son. it was also ordered that said amount was to be paid from 12-12-1976 within three months of the date of the order. being aggrieved by the said order of the learned additional sessions judge, the husband preferred special criminal application no. 606 of 1978 before this court, which was.....
Judgment:

V.V. Bedarkar, J.

1. Petitioner Maniben alias Madhuben has come to this Court with a grievance that the learned Sessions Judge, Baroda has wrongly reduced the amount of maintenance to be paid to her from Rs. 5100/- as ordered by the learned Judicial Magistrate, First Class, Baroda, to Rs. 1800/-. This was done by the learned Sessions Judge on consideration that the application for recovery of amount of maintenance under Section 125(3) of the Criminal P.C. 1973 hereinafter referred to as 'the Code' permits recovery of the amount of arrears of maintenance for one year only. This decision was given on the strength of first proviso to Sub-section (3) of Section 125 of the Code. Sub-section (3) of Section 125 of the Code reads as under:

125 (3). If 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 person for the whole or any part of each month's allowance 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:

Provided 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.

The facts in the instant case are that the wife filed Misc. Criminal Application No. 5 of 1976 for maintenance for herself and her minor son. The said application was dismissed by the learned Magistrate on 12-1-1976. Thereafter, the wife filed Criminal Revision Application No. 78 of 1977 before the learned Additional Sessions Judge, Baroda who set aside the order of the learned Magistrate and allowed the maintenance application by his order dated 6-6-1978, and the husband was ordered to pay maintenance at the rate of Rs. 100/- per month to the wife and Rs. 50/- per month to the minor son. It was also ordered that said amount was to be paid from 12-12-1976 within three months of the date of the order. Being aggrieved by the said order of the learned Additional Sessions Judge, the husband preferred Special Criminal Application No. 606 of 1978 before this Court, which was dismissed on 1-2-1979. Thereafter the petitioner-wife filed Misc. Criminal Application No. 49 of 1979 under Section 125(3) of the Code after the order of the High Court. That application was dismissed for default on 28-11-1980 in absence of petitioner-wife. Thereafter, present application, being Misc. Criminal Application No. 97 of 1980, was filed by her in the Court of learned Magistrate on 12-12-1980, i.e. within one month of that dismissal. It is not in dispute that the earlier application filed by the petitioner-wife was within one year of the final order of the High Court dated 1-2-1979. The learned Magistrate after considering this, ordered payment of an amount of Rs. 5,100/- towards arrears of maintenance allowance to the petitioner-wife after calculating the amount already received by the wife. The learned Sessions Judge considered that as earlier application was dismissed for default and no further proceedings were taken by the wife against that dismissal, she cannot get benefit of time required in that proceeding and, therefore, she would be able to recover the amount of maintenance only for one year prior to the date of filing the present application,

2. I am afraid the learned Sessions Judge has not correctly applied the provisions of law; though apparently he has stuck to the strict terminology used in the section. This Court A. M. AhmadiJ. in Parmar Chimanbhai Ghemabhai v. Pasiben : (1978)19GLR983 , has specifically observed that the provisions (first proviso to Sub-section (3) of Section 125 of the Code) are not in the nature of penal provisions but are welfare provisions and hence the rule of strict construction cannot be invoked. The first proviso, which enacts a rule of maintenance must therefore, receive a liberal construction as it is not intended to come to the rescue of a defaulting husband who neglects to honor his obligations and seeks to avoid payment of maintenance to his wife, though ordered by a competent Court. It is of course true that the facts in that case were different, but the principles enunciated would be applicable.

3. In Jagat Bandhu Sahu v. Lakshmi Dei 0065/1958 : AIR1958Ori257 , the Orissa High Court considered the case of a wife who applied for realisation of arrears of maintenance due. That claim also included certain amount which was for a period more than one year. But in the application it was clearly 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. On these facts the Orissa High Court held that under those 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 realisation of the arrear of maintenance. Then it has been further observed as observed by this Court in case of Parmar Chimanbhai Ghemabhai : (1978)19GLR983 Supra that the limitation provided in the second proviso to Sub-section (3) should not be so construed as to give a loophole 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. I fully concur with these observations of the Orissa High Court.

4. There is also a decision of the Allahabad High Court in Shankar Deo Nigam v. Smt. Savitri Devi, 1974 Cri LJ 135. In that case, the Magistrate ordered payment of maintenance to the wife by the husband. This order was passed on 19-12-1966. On 26-2-1969 the wife applied for execution of the order in the Court of the learned Magistrate. That was objected to, and one of the grounds raised was that the order was not enforceable as barred by limitation. From the facts, it was found that the first execution application was moved by the wife on 10-2-1967. But as the husband had filed a revision application against the original order, this application could not be proceeded with, and she filed another application on 22-12-1967. Thereafter, third application was made on 5-1-1968, i.e. within 12 months from the last execution application. That application was compromised and the proceedings were dropped. Again on 14-8-1968 the wife gave application for execution of the order which was dismissed for default, and finally she moved an application on 26-2-1969. The learned Sessions Judge considered that the wife was entitled to get an amount of Rs 480/-only, which would be the amount of maintenance for one year prior to the filing of the petition for recovery. The Allahabad High Court observed 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 old Code) by holding that the wife was entitled to a sum of Rs. 480/- only as maintenance for the period of 12 months preceding the date of application of enforcement and thereby holding that the rest of the claim had become time-barred. After referring to the proviso, the Allahabad High Court observed at p. 136:

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.' But considering the various judgments, in para. 10 it was specifically observed by the Allahabad High Court.

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.' I fully concur with the observations of the Allahabad High Court and the conclusions arrived at by it in the aforesaid decision. If this aspect is considered, merely because earlier application of wife was dismissed for default, it cannot be said that she is such a defaulting wife who has come to the Court very late. In that judgment of the Allahabad High Court, old case in U. Hoay Latt v. Ma Po Byu (1936) 37 Cri LJ 91 (b) : AIR 1935 Rangoon 407 was considered. Therein it was held that the proviso to Section 488(3) of the Code old was clearly enacted to prevent the persorn 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 loop-hole 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. If this aspect is appreciated in. the instant case, it cannot be said that the wife has remained negligent. Within one year of the decision of the High Court, she applied for recovery. Unfortunately, that application was dismissed for default. That cannot debar her from claiming arrears in fresh application which she filed.

5. In Kirparam Chhotan Raot v. Smt. Kalibai : AIR1960MP241 , the Madhya Pradesh High Court also held that 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.

6. Under the circumstances I am of the view that the learned Sessions Judge was not justified in reducing the amount of maintenance awarded to the wife by the learned Magistrate. I fully concur with the above cited decisions, that if an earlier application for recovery of amount of maintenance filed by the wife under Section 125(3) of the Code is dismissed for default, it would not debar the wife from claiming that amount in another application as well the amount which would remain in arrears if the second application is also within one year of the dismissal of the earlier application, or there is no negligence on the part of the wife.

7. In view of this, the petition is allowed. The order of the learned Additional Sessions Judge is set aside and the order of the learned Magistrate is restored Rule is made absolute.


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