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2002 DIGILAW 835 (RAJ)

Om Prakash v. State of Rajasthan

2002-04-23

KHEM CHAND SHARMA

body2002
JUDGMENT : 1. Heard learned counsel for the parties for final disposal at the admission stage. 2. This revision petition under section 397 read with section 401 Criminal Procedure Code arises out of the order dated 26.9.2001 passed by the learned Additional Sessions Judge No. 2, Bharatpur, allowing the revision petition preferred against the order dated 23.4.2001 passed by the learned Additional Judicial Magistrate No. 2. Bharatpur. 3. Respondent Ajay @ Ashok filed an application under section 125(3) Criminal Procedure Code before the learned Judicial Magistrate claiming maintenance amount for the period from 19.2.1996 to 18.2.2001. The learned Magistrate allowed the application of the respondent to the extent that he is entitled to get maintenance of preceding one year from the date of filing of application i.e. 22.2.2002. Feeling aggrieved by the aforesaid order, the respondent preferred a revision petition before the court of Sessions. The learned Additional Sessions Judge held that limitation of one year prescribed under Proviso to sub-section (1) of Section 125 Criminal Procedure Code is not applicable in the case of a minor. In case of a minor, the prescribed period of limitation is to be reckoned after the disability has ceased and he may file an application within the same period after the disability has ceased. 4. It appears that the original order under Section 125 Criminal Procedure Code was passed on 19.2.1996. At that time, respondent Ajay was minor and he attained majority on 18.8.1999, on 22.2.2000, he filed an application for recovery of maintenance for the period from 19.2.1996 to 18.2.2000. 5. The question which emerges for consideration of this court is whether in such cases the proviso to Section 125(3) Criminal Procedure Code is applicable or Section 6 of the Limitation Act is applicable ? 6. The learned Magistrate while passing the order has referred to a decision in Smt. Vimla v. State of Rajasthan and another, 1994 (1) RLW 35. Having perused the cited judgment, it appears that in that case the question of minor was not under consideration and Section 6 of the Limitation Act was also not considered. 7. The Andhra Pradesh High Court in Laxmi & Ors. Having perused the cited judgment, it appears that in that case the question of minor was not under consideration and Section 6 of the Limitation Act was also not considered. 7. The Andhra Pradesh High Court in Laxmi & Ors. v. Nakka Narayan Goud & Anr., 1994 (1) Crimes 239 while dealing with a case involving same question as that involved in the case at hand, after considering the provisions of Criminal Procedure Code in respect of proceedings for maintenance under section 125 Criminal Procedure Code and Section 6 of the Limitation Act, held that so long as the said minor does not attain the majority, for the enforcement of the order of maintenance, there can be no fetter of limitation prescribed under the 1st Proviso to sub-section (3) of Section 125 Criminal Procedure Code and the said provision has to be read down that the said limitation is only applicable to major maintenance holder and not minor maintenance holders. 8. Section 6 of the Limitation Act, 1963 keeps the limitation in abeyance in the cases where a person is a minor, insane or an idiot. In so far as the order of maintenance under Chapter IX of Criminal Procedure Code is concerned, once a minor attains majority and if the said person after attaining of majority is not suffering from any mental or physical handicap, the maintenance order passed in his favour automatically disappears. Even then for arrears accrued by the time of his attaining the majority, petition can be filed within one year of the attaining of the said majority. 9. In the case in hand, the respondent Ajay attained the age of majority on 18.9.1999 and he moved an application for payment of arrears of maintenance on 22.2.2000 i.e., within one year of his attaining the majority. In these circumstances, keeping in view the provision contained in Section 6 of the Limitation Act, I am of the considered view that the respondent was well within his right to move the application. The learned Additional Sessions Judge has passed the impugned order after considering the provisions of Limitation Act. The order is well reasoned and calls for no interference. 10. Consequently, the revision petition has no merit and it is dismissed accordingly.Petition dismissed.