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2009 DIGILAW 363 (ORI)

SADANANDA MEHER v. CHANDRAMANI DEI

2009-04-24

L.K.MISHRA

body2009
JUDGMENT : L.K. Mishra, J. - In this application u/s 482 of the Code of Criminal Procedure, 1973 (here-in-after called "the Code of Criminal Procedure "), order dated 19.06.2006 passed by the learned Sessions Judge, Kalahandi in Crl. Revision No. 24 of 2006 by which he refused to grant stay is impugned. 2. The present Petitioner is the husband, the present opp. party No. 1 is his wife and the present opposite party No. 2 is their minor daughter. On the application of present opposite parties Nos. 1 and 2 filed u/s 125 Code of Criminal Procedure bearing C.M.C No. 55 of 2001; maintenance was granted in their favour to the tune of Rs. 500/- per month from the date of filing of the application i.e. on 12.11.01. Challenging the said order, the present Petitioner filed Criminal Revision No. 24 of 2006 before the Sessions Judge, Kalahandi. The opposite parties Nos. 1 and 2 on the other hand filed five different petitions for realization of maintenance amount u/s 125(3) of Code of Criminal Procedure The present Petitioner filed a petition for stay of the five cases in the revision which was refused by the impugned order occasioning the present application. 3. Though many grounds have been taken in this application, the learned advocate for the Petitioner abandoned all other grounds and advanced a solitary ground to the effect that the execution petitions are barred by limitation and therefore, the learned Sessions Judge should have granted stay of realization of such amounts. According to him if the opposite parties had filed only one execution petition then it would have been maintainable but since five execution petitions have been filed long after the maintenance become due, they are barred by limitation. None appeared on behalf of the opposite party Nos. 1 and 2. 4. Chapter-IX of Code of Criminal Procedure deals with order for maintenance of wife, children and parents. Sub-section (1) of Section 125 Code of Criminal Procedure provides under what circumstances the Magistrate may order maintenance to be paid to the applicant. None appeared on behalf of the opposite party Nos. 1 and 2. 4. Chapter-IX of Code of Criminal Procedure deals with order for maintenance of wife, children and parents. Sub-section (1) of Section 125 Code of Criminal Procedure provides under what circumstances the Magistrate may order maintenance to be paid to the applicant. The provision relating to realization of maintenance amounts are contained in Sub-Section 2 and 3 of Section 125 of Chapter IX of Code of Criminal Procedure which are quoted below in extenso: 125 Order for maintenance of wives, children and parents: (1) xxx xxx xxx xxx xxx xxx (2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (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 month's [allowances for the maintenance or the interim maintenance and expenses of proceeding], 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: 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 by 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. xxx xxx xxx 5. xxx xxx xxx 5. 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. xxx xxx xxx 5. xxx xxx xxx 5. A close reading of the relevant provisions shows that at the first instance a person must be ordered to pay maintenance to a specific person i.e. his wife, child or parent. Such order of a Magistrate passed u/s 125(1) of the Code of Criminal Procedure, may specify that the maintenance or interim maintenance as the case may be is payable from the date of the order or from the date of application. If such order is not complied with without sufficient cause then it constitutes a breach of the order. For every breach of such order, the Magistrate may issue warrant for levying the amount due in the manner of provided for levying fines. However, no such warrant can be issued for any amount due unless application be made to the Court within a period of one year from the date of which the maintenance has become due. 6. The question now is when the amount becomes due. A conjoint reading of above provisions shows that the amount of maintenance becomes due only when it is actually ordered by the court to be paid as maintenance and thereafter, the person so ordered without any sufficient cause failed to comply with the said order. In any case, therefore, where maintenance is granted from the date of application, the arrear maintenance which has accrued during the pendency of the litigation can be said to have become due only on passing of the order against the opposite parties to pay the same and after he has failed to pay it. In other words, the arrear of maintenance cannot become due prior to any date of passing of the final order in the application for the maintenance since prior to such date there was no order capable of being enforced and therefore, no due had accrued. The limitation to levy the same survives till completion of the next one year and any application filed within this year cannot be said to be hit by the proviso of Sub-section (3) of Section 125 of the Code of Criminal Procedure. 7. The limitation to levy the same survives till completion of the next one year and any application filed within this year cannot be said to be hit by the proviso of Sub-section (3) of Section 125 of the Code of Criminal Procedure. 7. In the present case, it was not necessary for the wife and daughter to have filed five separate execution petitions since by filing only one petition within one year of passing the order of maintenance; they could have claimed the entire arrear maintenance as well as the current maintenance. Filing of the five execution petitions was redundant in the present case since all the applications have been filed admittedly within the period of limitation i.e. within one year of passing of the order of maintenance. However, that does not, by itself, make it illegal. 8. Under the circumstances, the learned Court below has rightly refused to grant stay. The application is thus without merit and is dismissed as such. The learned Revisional Court is directed to dispose of the revision expeditiously. Final Result : Dismissed