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2003 DIGILAW 221 (HP)

LEELA DEVI v. MOHAN LAL

2003-08-06

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J. :- This petition has been preferred by the petitioners against the judgment dated 3.10.2002 passed by the learned Additional Sessions Judge, Shimla whereby the revision petition filed by the petitioners against the order dated 11.5.2000 passed by the learned Judicial Magistrate (2), Shimla has been dismissed. 2. Brief facts relevant for the purpose of disposal of this petition, are that in an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) filed by the petitioners, the learned trial Magistrate awarded monthly maintenance allowance to petitioners No. 2 and 3 respectively in the sum of Rs.300/- and Rs.200/- to be paid by their father the respondent vide order dated 1.7.1995. On 11.3.1997 petitioners No. 2 and 3, through their mother petitioner No. 1, filed an application before the learned Judicial Magistrate for recovery of the arrears of maintenance. In the execution petition the amount of arrears recoverable as maintenance allowance or the period for which it was recoverable, was not specified. 3. The respondent filed objections. On the basis of the respective averments of the parties, two questions viz. (i) whether the claim for recovery of maintenance allowance was not maintainable because the petitioners had been residing with the respondent as a consequence of a compromise between petitioner No. 1 and the respondent, and (ii) whether the arrears for a period of more than one year preceding the date of filing of the application could be recovered. The learned Judicial Magistrate answered question (i) supra in the negative and qua question (ii)supra held that the petitioners could recover the arrears only for a period of one year preceding the date of presentation of the application for recovery of the arrears. 4. The petitioners, feeling aggrieved by the findings of the learned Judicial Magistrate restricting the recovery of arrears to one year immediately before the filing of the execution petition, filed a revision petition which was dismissed by the learned Additional Sessions Judge by the impugned order. Hence, this petition by the petitioners under Section 482 of the Code. 5. When this petition came up for hearing for the first time, none appeared for the respondent and when it came up for hearing the second time, none appeared for the parties and it was decided to dispose of this petition on merits without any further adjournment for hearing. 5. When this petition came up for hearing for the first time, none appeared for the respondent and when it came up for hearing the second time, none appeared for the parties and it was decided to dispose of this petition on merits without any further adjournment for hearing. Thus, I could not have the advantage of hearing the learned Counsel for the parties. 6. In .this petition the legality of findings on question (ii) supra has been challenged. Therefore, the short question arising for determination on this petition is Whether the petitioners, who are minors, could get recovered the arrears of maintenance for a period more than one year immediately before the filing of the application under Section 125(3) of the Code. 7. The relevant part of sub-section (3) of Section 125 of the Code reads as under :- " 125. Order for maintenance of wives, children and parents. (1) and (2) xxx xxx xxx (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 months allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be, 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;" 8. It is clear on a bare reading of the above quoted provisions that an application for recovery of arrears of maintenance allowance awarded under Section 125(1) of the Code is required to be made within a period of one year from the date when arrears had become due for payment. Under the first proviso to sub-section (3) of Section 125 supra, the period of one year prescribed therein will start running from the date of the order granting maintenance. Under the first proviso to sub-section (3) of Section 125 supra, the period of one year prescribed therein will start running from the date of the order granting maintenance. Thus only such arrears of maintenance allowance can be recovered which are payable for one year prior to the date of institution of the application for recovery of the arrears. In view of the special provisions made in the above referred proviso, nothing contained in the Limitation Act can help to recover the amount of arrears for a period beyond one year of the filing of the application under Section 125(3) of the Code for j recovery of such amount. 9. In view of the above position in law, the Courts below have rightly held the petitioners entitled to recover only such arrears of maintenance which are payable for a period of one year prior to the institution of the application for recovery of the arrears. 10. As a result, this petition merits dismissal and is accordingly dismissed.