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Madhya Pradesh High Court · body

2005 DIGILAW 704 (MP)

Ajab Rao v. Rekha Bai

2005-07-12

S.L.JAIN

body2005
Judgment ( 1. ) INVOKING revisional jurisdiction of this Court under Section 397 read with Section 401 of the Criminal Procedure Code (henceforth "the Code"), the applicant has filed this revision for setting aside the order dated 21. 2. 2000 passed by JMFC, Chhindwara in MJC No. 57/96. ( 2. ) THE facts giving rise to the application are that : non-applicants filed an application before the JMFC Chhindwara, under Section 125 of the Code for granting maintenance. The application was allowed granting maintenance at the rate of Rs. 250 per month. As the applicant failed to comply with the order, the non-applicants filed an application for enforcement of the order of maintenance which was registered as MJC No. 57/96. ( 3. ) DURING the pendency of this miscellaneous case, non-applicants on 11. 1. 2000 filed an application praying that the applicant may be sentenced to imprisonment under Sub-section (3) of Section 125 of the Code. The learned Magistrate vide impugned order allowed this application and issued the warrant of arrest against the applicant. ( 4. ) I have heard Mr. R. K. Samaiya, learned Counsel for the applicant, None appeared for the non-applicants. ( 5. ) LEARNED Counsel for applicant vehemently argued that the learned Magistrate directed that the amount of maintenance be recovered from the salary of the applicant. The application for issuing warrant of arrest was filed on 11. 1. 2000. No warrant can be issued for the recovery of any amount 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. ( 6. ) IN the present case, the application for recovery was filed in the year 1996. It was not necessary for the non-applicants to repeat the application for the amount falling due during the pendency of recovery proceedings. The amount under an order passed under Section 125 of the Code becomes due every month. There is nothing in the first proviso to Section 125 (3) to put embargo on Courts powers to direct recovery of amount of monthly maintenance falling due during the pendency of the recovery proceedings initiated at the first instance for recovery of past arrears. ( 7. There is nothing in the first proviso to Section 125 (3) to put embargo on Courts powers to direct recovery of amount of monthly maintenance falling due during the pendency of the recovery proceedings initiated at the first instance for recovery of past arrears. ( 7. ) WHEN the amount of maintenance was not paid during the pendency of the application under Section 125 (3) it was not necessary for the non-applicants to make an application every month. When the Court was satisfied that after filing of petition the amount has not been paid and it was not the case that the applicant had paid the amount and is paying regularly, Court had jurisdiction to order recovery of amount which had fallen due during the pendency of recovery proceedings. ( 8. ) ONCE the machinery of law was set in motion for recovery of arrears for the amount falling due in future till termination, the Court can always order recovery of the same. A person who is entitled to maintenance cannot be asked to file fresh application every month for recovery of maintenance allowance. Where the applicant persistently evaded payment of maintenance, the action of Magistrate sentencing him for delay in non-payment of maintenance after issuing distress warrant is justified. As the provision under Section 125 of the Code is a social legislation obstacles have to be overcome and technicalities ignored in order to implement it. In the case of arrears of maintenance for several months, Magistrate had jurisdiction to sentence the applicant to imprisonment. ( 9. ) IN view of the aforesaid discussion, I do not find any illegality in the order impugned. No case for interference in exercise of revisional jurisdiction is made out. The petition is, therefore, dismissed.