Research › Search › Judgment

Madras High Court · body

2002 DIGILAW 1628 (MAD)

A. Gopal v. G. Dhanammal

2002-12-20

P.SATHASIVAM

body2002
Judgment :- Aggrieved by the order of the Family Court, Salem, dated 27-02-2002 passed in C.M.P.No. 68 of 2000 in M.C.No. 10 of 1997, the petitioner herein-husband has preferred the above Revision before this Court. 2. The Family Court, Salem, passed an ex parte order in M.C.No. 10 of 97 on 5-11-97, granting maintenance to the first respondent herein/wife at the rate of Rs.500/- per month. According to her, as per the said order, the petitioner herein/husband is liable to pay maintenance at the rate of Rs.500/- p.m. from 6-12-97 to 5-5-2000, i.e., for 29 months, totalling Rs.14,500/-. She further stated that her husband is a land broker, getting an income of Rs.7,000/- per month. It is her case that in spite of the maintenance order and earning sizeable income, he has not chosen to pay the amount; hence she filed C.M.P.No.68 of 2000 in M.C.No.10/97 before the Family Court, Salem, for recovery of arrears of the maintenance amount. The petitioner herein/husband filed a counter statement in the C.M.P., disputing the averments made by his wife. It is stated therein that he had already filed a suit in O.S.No. 21/99 to declare that the respondent herein is not his wife and the same is pending, and that by furnishing wrong particulars, she obtained the ex parte order in M.C.No. 10/97. Pursuant to the ex parte order passed in M.C.10/97, as well as the order passed in C.M.P.No. 125/97, and to avoid warrant of arrest, out of fear, he deposited a sum of Rs.1,500/-. 3. Before the Family Court, no witness was examined, nor any document marked by any of the parties. The Family Court, after accepting the claim of the wife, ordered her application and directed the husband to pay the arrears of Rs.14,500/- at the rate of Rs.500/- per month on or before 6-3-2002. Questioning the said order, the husband has preferred the present revision before this Court. 4. Heard Mr. S. Subbiah, learned counsel for the petitioner/husband and Mr. M. Devaraj, for the respondent/wife. 5. Mr. S. Subbiah, learned counsel for the husband, after taking me through the order of the Family Court, granting maintenance and Proviso to Sub-Section (3) of Section 125 of the Code of Criminal Procedure, would contend that the Family Court committed an error in directing him (husband) to pay maintenance amount beyond the period of limitation prescribed. 5. Mr. S. Subbiah, learned counsel for the husband, after taking me through the order of the Family Court, granting maintenance and Proviso to Sub-Section (3) of Section 125 of the Code of Criminal Procedure, would contend that the Family Court committed an error in directing him (husband) to pay maintenance amount beyond the period of limitation prescribed. According to him, in view of the Proviso to sub-Section (3) of Section 125, no warrant should be issued for recovery of any amount due under Section 125 (1) Cr.P.C. unless application was made to the Court to levy such amount within a period of one year from the date on which it became due. On the other hand, Mr. M. Devaraj, learned counsel for the wife, would contend that in view of the order made in C.M.P.No. 125/97 and of the fact that the husband himself has paid Rs.1,500/- pursuant to the said order and also in view of his petition in C.M.P.No.85/99 and other civil proceedings, the one year period prescribed in the Proviso to sub-Section (3) of Section 125 is to be calculated from 27-2-2002, the date on which the Family Court has directed the husband to pay the entire arrears on or before 6-3-2002. 6. I have considered the rival contentions. 7. The following points arise for consideration: (i) Whether the petition filed by the respondent/wife for recovery of arrears of maintenance payable for a period of 29 months is maintainable in view of first proviso to sub-Section (3) of Section 125 of Criminal Procedure Code? (ii) Whether the impugned order of the Family Court directing the husband to pay the arrears amount on or before 6-3-2002 is sustainable? 8. There is no dispute that the respondent/wife secured an order in M.C.No.10/97 dated 5-11-97, granting maintenance at the rate of Rs.500/- per month from the date of petition i.e., from 6-3-97. Though it is stated that it is only an ex parte order, the fact remains that the petitioner/husband did not take steps to set aside the said order and that the same is executable. It is also stated that the wife has filed C.M.P.No. 125/97 for recovery of arrears of maintenance, and that the husband has paid on 6-3-2000 the entire arrears. It is also stated that the wife has filed C.M.P.No. 125/97 for recovery of arrears of maintenance, and that the husband has paid on 6-3-2000 the entire arrears. When the wife filed another application in C.M.P.No.68/2000 in M.C.No. 10/97 for recovery of arrears of maintenance amount of Rs.14,500/-for a period of 29 months from 6-12-97 to 5-5-2000, the husband filed a counter statement wherein he raised disputes regarding the ex parte order of maintenance and the relationship of the respondent herein as his wife. He also pointed out therein that there was a suit in O.S.No.21/99 filed by him for declaring that the respondent herein is not his legally wedded wife is pending. The objection that the wife is not entitled to claim arrears for more than one year, as provided in the first proviso to sub-Section (3) of Section 125 has not at all been raised either in the counter statement filed before the Family Court or at the time of argument. On the other hand, as stated earlier, the husband has questioned only the ex parte order of maintenance, validity of his marriage with the respondent herein and the pendency of civil proceedings of the same (O.S.21/99). Apart from the averments made in the petition as well as in the counter statement, the parties have not let in evidence either in the form of oral or documentary in support of their respective claim. In such a circumstance, the Family Court, after noting that the husband himself deposited a sum of Rs.1,500/- in C.M.P.No.125/97, dismissed his both petitions viz., C.M.P.No.85/99 for setting aside the order passed in C.M.P.No.125/97; and C.M.P.42/99 in O.S.21/99 for stay of the recovery proceedings and directed him to pay the arrears amount on or before 6-3-2002. Mr. S. Subbiah, learned counsel for the petitioner, by drawing my attention to First Proviso to sub-section (3) of Section 125 Cr.P.c., would contend that the Magistrate has no power to issue warrant for recovery of any amount unless the application is made within one year from the date on which it became due. He also very much relied on a judgment of M. Karpagavinayagam, J., in RAJENDRAN v. MINOR REVATHI, REPRESENTED BY MOTHER MAHESWARI, reported in 1997 (1) Crimes 486 . He also very much relied on a judgment of M. Karpagavinayagam, J., in RAJENDRAN v. MINOR REVATHI, REPRESENTED BY MOTHER MAHESWARI, reported in 1997 (1) Crimes 486 . The learned Judge, after considering the very same provision and after referring to judgments of Rajasthan and Andhra Predesh High Courts, arrived at a conclusion that, "petition under Section 125 (3) Cr.P.C. could be filed, claiming arrears of maintenance only for a period of one year from the date on which it became due." After verifying the provisions referred to above and the judgments cited, I am in respectful agreement with the view taken by the learned Judge and I hold that as per First Proviso to sub-section (3) of Section 125 Cr.P.C., warrant shall be issued for the recovery of the amount due only if an application is made to the Court within a period of one year from the date on which it became due. Since there is no quarrel with regard to the said proposition of law, I am of the view that it is unnecessary to consider the other decisions cited by either side. However, it is useful to refer the factual details in in case on hand which dis-entitle the petitioner-husband to claim the limitation prescribed in the above provision. I have already referred to the admitted factual position, namely, the petitioner herein/husband has not raised such objection before the Family Court either in the counter statement or at the time of argument. In such a circumstance, the Family Court had no occasion to consider such a plea while passing the impugned order. The other aspect to be noted is that in the earlier petition, namely, C.M.P.No. 125/97 filed by the wife against her husband for recovery of maintenance amount, he had paid a portion of the arrears on 6-3-2000. He also filed a petition in C.M.P.No. 85/99 to set aside the order passed in C.M.P.No.125/97 in M.C.No.10/97, and also filed another petition in C.M.P.No.42/99 in O.S.No.21/99 for stay. Since he had paid a portion of the amount, C.M.P.No. 85/99 was ultimately dismissed. It is also seen from the impugned order that the civil proceedings initiated by the husband for staying the maintenance proceedings were also dismissed. Since he had paid a portion of the amount, C.M.P.No. 85/99 was ultimately dismissed. It is also seen from the impugned order that the civil proceedings initiated by the husband for staying the maintenance proceedings were also dismissed. It is also relevant to note that the petitioner herein/husband has not challenged the order passed in C.M.P.No. 125/97, directing him for payment of Rs.4,500/- and as a matter of fact, even according to him, he had paid a portion of the amount. Taking note of all the above factual details, namely, the stand taken before the Family Court, the payment of a portion of the maintenance amount pursuant to the order therein, the dismissal of his petition in C.M.P.No.85/97 and the stay petition in C.M.P.No.42/99 in the civil proceedings, non-taking of steps by the husband to set aside the ex parte order of maintenance, the dismissal of civil proceedings initiated against his wife, I am of the view that the impugned order of the Family Court cannot be faulted with. It is clear that as per First Proviso to sub-Section (3) of Section 125 Cr.P.C. a petition could be filed claiming arrears of maintenance only for a period of one year from the date on which it became due. In the light of the reasons stated earlier, in view of the payment made by the husband, and taking note of the fact that orders were passed dismissing his petitions, etc., in the peculiar circumstance of the case, the petitioner herein is not entitled to the benefit of the said provision; accordingly I do not find any valid ground for interference of the order of the Family Court. 9. Net result, the Revision fails and the same is dismissed. Crl.M.P.No.3566/2002 is closed.