Swati Suresh Ubale v. Suresh Laxman Ubale — 1995 DIGILAW 437 (BOM)

JUDGMENT R.M. Lodha, J. - Mrs. Swati wife of Suresh Ubale is aggrieved by the order dated 229-1994 passed by the Judicial Magistrate, First Class, 9th Court, Nagpur, whereby the said Court refused to pass appropriate orders for recovery of maintenance arrears in respect of the period from January 1993 till the date of passing of the order, and by this application under section 482 of the Code of Criminal Procedure, she challenges the order dated 22-9-1994 passed by the Judicial Magistrate, First Class, 9th Court, Nagpur. 2. Applicant Swati (for short 'the wife') is admittedly the wife of non-applicant No.1 Suresh Laxman Ubale (for short 'the husband'). It is not disputed that in the proceedings under section 125 of the Code of Criminal Procedure at the instance of the wife the Judicial Magistrate, First Class, Nagpur, awarded maintenance at the rate -of Rs. 200/- per month payable by the husband, vide order dated 31-7 -1985 in Criminal Case No. 92 of 1993. 3 . Two applications were filed by the wife in the Court of the 9th Judicial Magistrate, First Class, Nagpur. The first application was filed on 11-2-/1992/4-3-1992 by the wife in the Court of the 9th Judicial Magistrate, .first Class, Nagpur, stating therein that the husband has been very irregular in payment of maintenance amount and he never pays the maintenance monthly in time. According to the averments made in the said application, the husband was in arrears of maintenance since March 1991 and the total outstanding amount on that date was Rs. 3,300/ -. By another application dated 16-12-1992, the wife brought to the notice of the Court that the husband is in arrears of maintenance from the period from March 1992 to December 1992, amounting to Rs. 3,000/-. In the first application filed on 11-2-1992/4-3-1992 the wife prayed that the husband be sentenced to suffer RI. for the defaulted amount till the maintenance amount was fully paid by him, and in the application dated 16-12-1992 the wife prayed that the husband be directed to pay the maintenance outstanding and he be sentenced for each month amount unpaid. 4. Both these applications were contested by the husband. The husband placed on record two pursis. Pursis (Exh. 16) was filed by the husband to show that he had deposited Rs. 4. Both these applications were contested by the husband. The husband placed on record two pursis. Pursis (Exh. 16) was filed by the husband to show that he had deposited Rs. 6,900/- in the case bearing No. 86/92 - the application in which the wife submitted that arrears of maintenance was outstanding since March 1991 to the date of making of the application dated 11-2-1992/4-31992, (maintenance for 11 months amounting to Rs. 3,300/- had become outstanding) and the husband submitted that in that case he had paid the excess amount of Rs. 3,600/-. The application filed by the wife on 16-12-1992, seeking , arrears of maintenance from the husband from March 1992 to December 1992 was registered as Misc. Case No. 384/92 and in that case the pursis was filed by the husband seeking adjustment of Rs. 3,600/-, which he paid in excess in Mise. Case No. 86/92, and submitted that the excess amount be adjusted for satisfaction of the amount prayed by the wife in the application filed on 16-12-1992 and thus no amount was outstanding. 5. Both the applications, which were registered as Misc. Case Nos. 86/92 and 384/92, were disposed of by the Judicial Magistrate, First Class, 9th Court, Nagpur, on 22-9-1994 and by that time the amount of maintenance from January 1993 also became due and the wife prayed before the judicial Magistrate, First Class, 9th Court, Nagpur, that while disposing of these two applications, the husband be ordered to pay arrears of maintenance from January 1993 as well, but the said prayer was negative by the Judicial Magistrate, First Class, 9th Court, Nagpur, in the order dated 22-9-1994, observing that such prayer cannot be entertained in these applications. This part of the order passed by the Judicial Magistrate, First Class; 9th Court Nagpur, on 22-9-1994 has given rise to the present application under section 482 of the Code of Criminal Procedure. 6. Shri Parsodkar, the learned counsel appearing on behalf of the wife urged that the Judicial Magistrate, First Class, 9th Court, Nagpur, failed to exercise jurisdiction vested in him under law in not directing the husband to pay arrears of maintenance for the period from January 1993 at the time of passing of the order on 22-9-1994, when admittedly the husband had not paid the maintenance from January 1993. The learned counsel for the wife would urge that if during the pendency of the proceedings for recovery of maintenance the payment of maintenance became due, it was always open to the Court to pass appropriate order directing the husband to make the payment of the arrears of maintenance till the passing of the order, and the wife was not required to make fresh application time and again. In support of his contention, the learned counsel for the wife relied upon the decision of the M.P. High Court in Loonchand v. Hemkanta1. 7. On the other hand, Mr. Chaube, the learned counsel appearing on behalf the husband, submitted that the two applications filed by the wife related to definite period and since the amount for that period was paid to the wife, if any maintenance became due during the pendency of those applications, it was obligatory on the part of the wife to make fresh application for recovery under law and in the absence of such application by the wife seeking recovery of maintenance within 12 months having become due, no order could have been passed by the trial Court, directing the husband to pay arrears of maintenance and, therefore, the Judicial Magistrate, First Class, 9th Court, Nagpur, was fully justified in observing that the claim in respect of arrears of maintenance from January 1993 always cannot be entertained in these applications. The learned counsel for the husband relied on the decisions in Shamrao v. Premilamma and another2, Jangam Srinivasa Rao v. Jangam Rajeshwari and another3, Ganga Ram v. Jakali and Ors4, Gunwant Kawadoo Katore v. Kawadoo Narayanrao Katore5, and Sundar Ganpat Bekal v. Bhagirathi Sundar Bekal6. 8. The rival contention raised by the learned counsel have been given due thought by me. Section 125-of the Code of Criminal Procedure makes the provision for an order of maintenance of wives, children and parents, who are unable to maintain themselves, and do not have sufficient financial means for maintenance of their own. The provision contained in section 125, Criminal Procedure Code is to mitigate the miseries of wives, children and parents, who are unable to maintain themselves, and obligates the person who neglects or refuses to maintain his wife, children or parents to pay maintenance to the extent provided in section 125, Criminal Procedure Code. The provision contained in section 125, Criminal Procedure Code is to mitigate the miseries of wives, children and parents, who are unable to maintain themselves, and obligates the person who neglects or refuses to maintain his wife, children or parents to pay maintenance to the extent provided in section 125, Criminal Procedure Code. This section is a measure of social justice and is specially enacted to protect the women and children and old parents. Right to maintenance conferred by this section is a statutory right, which the Legislature has created. There is no dispute that the husband has been directed to pay the wife maintenance at the rate of Rs. 200/- per month by an order dated 31-7-1985 and the said order holds the field till date. Thus, by virtue of the order dated 31-7-1985, the husband is obliged and required to pay -maintenance to the wife at the rate of Rs. 200/- per month. The grievance of the wife is that despite the order passed on 31-7-1985 directing the husband to make the payment to the wife at the rate of Rs. 200/- per m9nth, the husband has been irregular in making the payment of maintenance to the wife and since he did not pay the maintenance from March 1991, the wife was compelled to make the application for recovery of the amount, which had become due. This application was filed on 11-2-1992/4-3-1992 and by that time the maintenance for 11 months, amounting to Rs. 3,300/- has fallen due and the said application was registered as Misc. Case No. 86/92. Another application came to be filed by the wife on 16-12-1992, seeking maintenance for the outstanding period from March 1992 to December 1992 i.e. for the period of 10 months, amounting to Rs. 3,00q/- and the said application was registered as Misc. Case No. 384/92. It appears from the record that in Mise. Case No. 86/92 relating to recovery of maintenance from March 1991 to February 1992, the husband deposited the amount of Rs.6, 900/and thus he deposited Rs. 3,600/- in excess so far as that application was concerned. Since the amount of Rs. 3,600/- was deposited in excess by the husband in Misc. Case No. 86/92, the husband filed the pursis in Misc. Case No. 384/ 92 relating to recovery of maintenance for the period from March 1992 to December 1992 amounting to Rs. 3,600/- in excess so far as that application was concerned. Since the amount of Rs. 3,600/- was deposited in excess by the husband in Misc. Case No. 86/92, the husband filed the pursis in Misc. Case No. 384/ 92 relating to recovery of maintenance for the period from March 1992 to December 1992 amounting to Rs. 3,000/- and that excess amount paid by him be adjusted. However, by the time both these applications filed on 11-2-1992/ 4-3-1993 and 16-12-1992 came to be disposed of on 22-9-1994 by the Judicial Magistrate, First Class, 9th Court, Nagpur, admittedly the arrears of maintenance from January 1993 also became due. When the wife prayed the Judicial Magistrate, First Class, to make an order directing the husband to pay maintenance from January 1993, the said Court passed al1 order on 22-9-1994, disposing of these two applications filed by the wife and observed that no order for payment of arrears of maintenance from January 1993 could be entertained in these applications, and refusal to pass the order directing the husband to pay the maintenance arrears while passing the order dated 22-9-1994, has given rise to the present application under section A82 of the Code of Criminal Procedure. 9. The principal question, therefore, that needs consideration in this criminal application under section 482 of the Code of Criminal Procedure is whether the wife was required under law to make fresh application for recovery of maintenance which had fallen in arrears during the pendency of the two applications filed by her, and whether in the absence of any further application by the wife seeking recovery of maintenance from January 1993 till passing of the order dated 22-9-1994, the Court could have passed appropriate orders for recovery of the said amount. 10. Section 125(3) of the Code of Criminal Procedure reads as under: 125(1) XX XX XX (2) XX XX XX (3) If any person so ordered fails with out 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: Provided further that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated buy her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation: If a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him. (4) XX XX XX (5) XX XX XX Section 128 of the Code of Criminal Procedure reads as under: "128. Enforcement of order of maintenance - A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due. " 11. In Loonchand v. Hemkanta (supra), the M.P. High Court has held as under: "9. Section 125 of the Code is designed to place the right to maintenance on the pedestal of a statutory right and thereby prevent destitution. It is in this background that the relevant provision has to be construed. The proviso extracted above is only to ensure that the person who has the order under section 125(1) of the Code does not sleep over and allow the arrears to grow. It cannot certainly be construed as giving a technical defence to the defaulting husband to deprive the wife who has been vigilant and has come to the Court with an application for levying the amount of arrears and for an order for the monthly allowance being regularly paid to her. It cannot certainly be construed as giving a technical defence to the defaulting husband to deprive the wife who has been vigilant and has come to the Court with an application for levying the amount of arrears and for an order for the monthly allowance being regularly paid to her. The prayer for levying the amount as and when they fall due is implicit in the application. In the circumstances of the case, there was no need during its pendency to multiply applications for the purpose. Any fresh application would only have been in continuation of the prayer already made. The decision in Devideen's case 1966 MPLJ 831 , makes an illuminating reading." 12. The Karnataka High Court in Shamrao v. Premilamma (supra) held as under: "6. It is obviously correct that the reasoning of the learned Magistrate that the application was made in continuation of the previous two applications could not be sustained. That was an erroncous finding. The previous two execution applications came to an end no sooner Rs. 3,000/- were paid and therefore nothing remained in continuation of those two applications. Thus, the third execution application could not be considered to be in continuation of any previous application. It would stand by itself and if it was filed within the period of limitation then alon8 the respondents could claim maintenance. The argument of Sri B.K. Ramchandra Rao although ingenious, yet appear to be devoid of any merit. The order of the learned Magistrate granting maintenance, unless the same was cancelled by another order made under section 127(2), could not be automatically cancelled. The petitioner obviously did not take that step as the decision of the Civil Court was in his favour at that stage. The Respondents filed an appeal before the Civil Judge and why should they have applied to the Magistrate for cancellation or variation of the order. Perhaps they could have been well advised to file an application for the recovery of maintenance which they never did, may be because they had preferred an appeal before the Civil Judge. The Respondents filed an appeal before the Civil Judge and why should they have applied to the Magistrate for cancellation or variation of the order. Perhaps they could have been well advised to file an application for the recovery of maintenance which they never did, may be because they had preferred an appeal before the Civil Judge. If it is correct to hold that the order of the learned Magistrate stood as such, and could not be deemed cancelled unless a proceeding to that effect was entertained under section 127(2), perhaps, the argument of Sri B.K. Ramchandra Rao, the learned counsel for the respondents could not be correct when he attempted to draw a distinction by saying that the cancellation of the order of the Magistrate having Dot been there, nevertheless the amount ceased to be due under that order simply because of O.S. 80/69 was decreed on 30-8-1972. The maintenance due was part and parcel of the order regarding its payment made by the learned Magistrate. The two legal conceptions could not be separated and one cannot conceive of an order of maintenance as not due, even though the order granting maintenance is intact and is not cancelled. As long as the order granting maintenance held good, the amount shall be stated to be due under that order. That being the position, the question of limitation would assume greater importance. 7. In that connection, the learned counsel for the respondents, brought to his assistance section 5 of the Limitation Act. Under that provision, perhaps, the respondents could make out a case of sufficient cause or not, for preferring an application within the prescribed time. But for that, an allegation has got to be made on behalf of the respondents, and a decision has to be given by the learned Magistrate. It is for the respondents to make an application under section 5 of the Limitation Act: They have to give all reasons for making out sufficient cause in their favour. If they succeed in doing so before the Magistrate, perhaps, they may be entitled to claim maintenance. At any rate, nothing definite could be stated at this stage. As I have stated above, some evidence was needed to arrive at decision under section 5 of the Limitation Act. For this the case will have to be sent back to the learned Magistrate. 13. At any rate, nothing definite could be stated at this stage. As I have stated above, some evidence was needed to arrive at decision under section 5 of the Limitation Act. For this the case will have to be sent back to the learned Magistrate. 13. In Jangam Sriniuasa Rao v. Jangam Rajeshwari and another (supra), the Andhra Pradesh High Court after considering section 125(3) of the Code of Criminal Procedure and various judgments, held as under: "11. With utmost respect I may also indicate that the first proviso to section 125(3), Criminal Procedure Code would supply to both the limbs or both the methods of recovery contemplated under sub-section (3) of section 125, Criminal Procedure Code. It cannot be said that the proviso would apply to the first mode of recovery i.e. by issue of a warrant for levying fines and that it would not apply to the 2nd mode of execution, viz. by arresting and sending him to jail A harmonious construction and interpretation requires that the proviso should be applied to both the limbs of section 125(3), Criminal - Procedure Code." 14. The Rajasthan High Court in Ganga Ram v. Jakali and ors. (supra), held thus "9. In the instant case. Mst. Jakali had moved an application for grant of maintenance as early as on 1-6-1981 which was decided only on 15-12-1983. Merely filing of an application by husband for setting aside that order could not prevent her from filing such application for enforcement of the order. There was nothing to prevent the wife from making an application for the enforcement of the order passed in her favour within one year of the decision. Therefore, awarding of arrears beyond the period of one year and without there being stay from June 1981 to 1-6-1984 is abuse of the process of the Court and as such the order dated 21-31987 is liable to be quashed." 15. Two judgments of this Court have been referred to by the learned counsel for the husband. In Gunwant Kawadoo Katore v. Kawadoo Narayanrao Katore (supra), the Single Judge of this Court held as follows: "8. Two judgments of this Court have been referred to by the learned counsel for the husband. In Gunwant Kawadoo Katore v. Kawadoo Narayanrao Katore (supra), the Single Judge of this Court held as follows: "8. The first proviso to sub-section (3) of section 125 of the Code of Criminal Procedure provides that no warrant shall be issued for recovery of any amount due under this section, unless an application is made to the Court to levy such amount within a period of one year from the date on which it became due. The said proviso hence makes it abundantly clear that an application under the said sub-section has to be made within a period of one year from the date on which the amount became due. Necessarily in clear terms the first proviso to sub-section (3) of section 125 of the Code of Criminal Procedure puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due, unless the application is made within one year from the date of the amount became due. In such a situation it is incumbent on the Magistrate to first ascertain as to when the amount has become due. The order granting maintenance was admittedly passed on 24th July, 1984 and the amount became due to the petitioner every month thereafter. Merely because the respondent disputed the said order and challenged it in the Court of Session, and then also in this Court, it cannot be said that the amount was not due during that period. It may be relevant to mention here that neither the Court of Session, nor this Court had stayed the operation of the order dated 24th July 1984 granting maintenance to the petitioner. In these circumstances, it is difficult to hold that the amount of maintenance allowance had become due only after this Court had finally rejected the criminal application. A similar view was also taken in Bimla Devi v. Kama Mulla7. 9. It was next contended that section 5 of the Limitation Act, 1963 is specifically made applicable by virtue of sub-section 29 section 29 of the said Act and it can be availed of for the purposes of extending the period prescribed by the special or local laws, if sufficient cause is shown for not presenting the application in time. 9. It was next contended that section 5 of the Limitation Act, 1963 is specifically made applicable by virtue of sub-section 29 section 29 of the said Act and it can be availed of for the purposes of extending the period prescribed by the special or local laws, if sufficient cause is shown for not presenting the application in time. In this respect reliance can be placed on the decision of the Supreme Court in Mangu Ram v. Municipal Corporation of Dethi8, where it is laid down that unless the special or local law specifically excludes the applicability of section 5 of the Limitation Act, 1963 then alone it would stand displaced. Merely making a provision of a period of limitation in howsoever peremptory or imperative language it might be, is not sufficient to displace the applicability of section 5. In the Supreme Court case, section 5 of the Limitation Act 1963 was made available to the applicant for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of section 417 of the Code of Criminal Procedure, 1898. In the present case, it is not necessary, for this Court to go into this question, because no application under section 5 of the Limitation Act seeking condonation was moved by the petitioner before the learned Chief Judicial Magistrate, while moving the application under sub-section (3) of section 125 of the Code of Criminal Procedure. The point is hence left undecided. 16. The Division Bench of this Court in Sunder Ganpat Bekal v. Bhagirathi Sunder Bekal (supra) thus held "8. With the assistance of the learned counsel for the appellant we have gone through the impugned order passed by the learned judge of the Family Court Paragraphs 18 to 21 of the judgment of the Family Court deal with the impugned part of the order. In paragraph 18, the learned Judge seems to have taken into consideration the allegation of the respondent-wife that arrears are due from May 1973 up to date except for the payments deposited by the husband in Court from time to time and to ascertain the same, he has calculated the actual payments deposited by the husband in Court from and recorded the said adjustment. By the said calculation the arrears came to above Rs. By the said calculation the arrears came to above Rs. 10,110/- deducting the amount paid in respect of the daughters maintenance he has arrived at the figure of Rs. 9,660/-. However, in respect of the recovery of the said amount of Rs.9,660/-thelearned Judge of the Family Court has made a serious error. He has relied upon the decision of the Full Bench of this Court in Karson Ramjit v. The State of Bombay9. But in doing so he has completely lost sight of the fact that the Full Bench was dealing with the powers of Magistrate under then existing provisions of section 488(3) of the Code of Criminal Procedure corresponding to section 125(3) of the New Code of the Criminal Procedure and has observed that the said provision confers upon toe Magistrate two independent powers, one to issue a warrant which has to be executed in the manner laid down in the subsection and the other to sentence the person also in the manner laid down in the sub-section . Thus the Full independent powers of the Magistrate one to issue warrant and one to sentence the person are both to be executed or passed respectively in the manner laid down in this sub-section. A reading of the provisions of section 125(3) of the Code of Criminal Procedure indicates that for every breach of the order, the Court may 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 allowance remaining unpaid after execution of the war~ rant, to imprisonment for a term which may extend to one month or until payment if sooner made. Therefore, the power to sentence arises only if after the execution of the warrant, whole or any part of each monthly allowance has remained unpaid. But the proviso to section 125(3) of the Code further makes it clear 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 period of one year from the date on which it became due. But the proviso to section 125(3) of the Code further makes it clear 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 period of one year from the date on which it became due. Therefore, a warrant can be issued for recovery of the amount only for a period of 12 months from the date of which it became due and it is only if after this warrant is executed, full or part, of the maintenance amount asked remains unpaid, can the Magistrate sentence the defaulter. 17. All the aforesaid judgments have referred to section 125(3) of the Code of Crimina1 Procedure and applied the said provision in the facts and circumstances existing in each case. As observed above, in the present case, the moot question which needs to be decided is if during the" pendency of the application for recovery of maintenance under section 125(3), Criminal Procedure Code, for the subsequent period, the maintenance has become due, is the wife required to make fresh application time and again for recovery/levy of the said amount, or whether the Court is empowered to pass appropriate order to serve the ends of justice for recovery of arrears of maintenance which had become due after filing of the application for recovery of maintenance upto the time of disposal of such application. 18. The very nature of the provision contained in section 125 of the Code of Criminal Procedure is directed to mitigate the miseries of wives, children or parents, who are unable to maintain themselves and have been neglected or refused to be maintained by the person, who, under the law, is required to maintain such persons. Such beneficial legislation should be construed in the manner which advances the cause of justice and serves the purpose for which such provision has been enacted. Such beneficial legislation should be construed in the manner which advances the cause of justice and serves the purpose for which such provision has been enacted. It is true that section 125(3) of the Code of Criminal Procedure provides that if the person who has been ordered to make payment of maintenance fails in his duty to comply with the order in the absence of any sufficient cause, the Magistrate having jurisdiction over the matter is empowered to issue warrant for levying the amount due for every breach of order and such Magistrate is also empowered to sentence, such person for the whole or any part of each month 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. The first proviso to sub-section (3) of section 125, however carves out an exception that no warrant shall be issued for levy of any amount due under this sub-section unless an application is made to the Court to levy such amount within a period of one year from the date on which it became due. Obviously what is meant by this proviso is that if the payment of maintenance has become due then within a period of one year there from an application has to be made for issuance of warrant for levy of the due amount but once the application is made for recovery of maintenance amount which has become due, if during the pendency of such application, further amount becomes due, the said proviso does not bar issuance of warrant for such amount. The wife or such person should not be compelled to move fresh application for future amount which had become due during the pendency of the application already filed for recovery of arrears of maintenance. The first proviso to section 125(3) of the Code of Criminal Procedure cannot be construed too technically and narrowly which would frustrate and defeat the very objective for which the said provision has been enacted. The first proviso to section 125(3) of the Code of Criminal Procedure cannot be construed too technically and narrowly which would frustrate and defeat the very objective for which the said provision has been enacted. It is the fundamental principal of law that multiplicity of proceedings should be avoided as far as possible, and practicable and if the aggrieved wife, children or parents, as the case may be, has made an application for recovery of arrears of maintenance and during the pendency of such application, the maintenance has fallen due for the period post application, pending adjudication before the Court, there cannot be and should not be any need for filing fresh application for recovery of maintenance which had become due during the pendency of the application. Multiplicity of applications for recovery of maintenance which had become due during the pendency of the application under section 125(3), Criminal Procedure Code already filed is neither in the interest of justice nor the requirement of law and, therefore, insistence for making fresh application for recovery of arrears of maintenance during the pendency of the application already filed would be unjustified and would rather lead to abuse of the process of the Court. There is justification in the observations made by the M.P. High Court in Loonchand's case (supra) that when the wife makes an application to secure an order that the husband should pay maintenance regularly, then the first proviso to section 125(3) of the Code of Criminal Procedure is satisfied and there is no need to multiply the applications by filing them every year, and I am in agreement with the said view of the M.P. High Court. It is always open to the Court seized of an application for recovery of arrears of maintenance to pass an order directing the husband to make the payment of arrears of maintenance upto the decision since such power is implicit in exercise of jurisdiction of the Court while disposing of the application for recovery of arrears of maintenance. The first proviso to section 125(3) of the Code of Criminal Procedure cannot be overstretched that for arrears of maintenance which fallen due d ling the pendency of application for recovery of maintenance, the aggrieved person should make an application again within a period of one year from the date on which it became due. The first proviso to section 125(3) of the Code of Criminal Procedure cannot be overstretched that for arrears of maintenance which fallen due d ling the pendency of application for recovery of maintenance, the aggrieved person should make an application again within a period of one year from the date on which it became due. First proviso to section 125(3) bars recovery of arrears for more than one year preceding filing of application but does not bar recovery of arrears of maintenance becoming due subsequent to such application during its pendency. As the disposal of applications in courts does take time, and if during the pendency of the application for arrears of maintenance the maintenance for the subsequent period becomes due, the Court can always meet that situation by passing appropriate order for recovery of that amount due till the date of disposal of that application. 19. Applying the aforesaid principles, it would be apparent that during the pendency of the two applications filed on 11-2-1992/4-3-1992 and 16-12-1992, which came to be disposed of on 22-9-1994, admittedly the maintenance became due from January 1993 and that power being implicit in exercise of jurisdiction of the Judicial Magistrate, First Class, 9th Court, Nagpur, while disposing of the said applications, the said Court ought to have directed the husband in respect of maintenance arrears from January 1993, and the said Court failed to exercise the jurisdiction vested in it when it observed that the claim in respect of maintenance arrears from January 1993 onwards cannot be entertained in these applications. 20. A word about the two judgments of this Court. In Gunwant Kawadoo Katore's case (supra), the application filed by the wife under section 125(3) of the Code of Criminal Procedure for recovery of arrears of maintenance related to the period of 32 months preceding said application and the Court observed that the order could only be passed for 12 months from the date it became due. The said case, therefore, has no authority on the point involved in the present case. The said case, therefore, has no authority on the point involved in the present case. Similarly, the judgment of the Division Bench of this Court in Sundar Ganpat's case (supra) also deals with the question for recovery of arrears of maintenance of more than 12 months preceding application and it was held that warrant can be issued for a period of 12 months from the date on which it became due, but the Division Bench has not dealt with the question that if during the pendency of such application if subsequent payment of maintenance has become due, whether the said Court has power to pass appropriate order or not. In this background, Sundar Ganpat 's case (supra) has also no relevance and is not an authority on the issue involved in the present case. The other judgments referred to by the learned counsel for the husband, by the Karnataka High Court in Sham Rao's case (supra) and Jangam Srinivasa Rao's case (supra) also deal with the question whether the wife can seek orders for non-payment of accumulated maintenance amount of more than year preceding application and both the judgments do not deal with the situation about accumulation of the amount of maintenance subsequent to the filing of the application during the pendency thereof. The judgment of the Rajasthan High Court in Ganga Ram's case (supra) also does not deal with the question involved in the present case and has no application. 21. Consequently, this criminal application is allowed. The order passed by the Judicial Magistrate, First Class 9th Court, Nagpur, on 22-9-1994 is quashed and set aside and the matter is sent back to the said Court for passing appropriate orders in accordance with law and the observations made hereinabove. The parties are directed to appear before the Judicial Magistrate, First Class, 9th Court, Nagpur, on 15th September, 1995. It is expected that the said Court would hear and decide the matter as early as possible and preferably within three months from the appearance of the parties. Order accordingly. Application allowed. 1. 1986 (1) DMC 431. 2. 1977 Kar. LJ. 300. (Distinguished) 3. (1989)II DMC 488 (Distinguished) 4. (1992) I DMC 202. 5. 1989 (11) DMC 40. (Distinguished) 6. (1993) II DMC 322 (Distinguished) 7. 1985(II) DMC (Orissa) 8. AIR 1976 SC 195 9. AIR 1958 Bom. 99 .