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2012 DIGILAW 671 (CAL)

In re : Uttam Das v. .

2012-07-23

Toufique Uddin

body2012
Judgment Toufique Uddin, J. This revision arose out of the order dated 23.7.2012 passed by the learned Chief Judicial Magistrate, Malda in Exn. Case No. 2(M) of 2011 in a proceeding under Section 128 of the Code of Criminal Procedure arising out of Exn. Case No. 292(M)/2000 under Section 125 of the Code of Criminal Procedure, 1973. In the background of misc. case the fact in a nutshell is that the Opposite Party No. 2 filed an application under Section 125 of the Code of Criminal Procedure in case No. 292(M)/2000 before the learned Chief Judicial Magistrate, Malda under Section 125 of the Code of Criminal Procedure. Being aggrieved by and dissatisfied with the said order dated 27.12.2010, the petitioner filed a revision before the Hon'ble Court and Hon'ble Justice T. K. Gupta, by His Lordship’s order dated 30.11.2011, was pleased to dismiss the revisional application. It is also pertinent to mention that the petitioner has also filed O.C. suit No. 212/95 in the court of learned Civil Judge, Jr. Div., 1st Court at Malda challenging the marriage between them. That suit was dismissed by the learned court and a second appeal was dismissed by the Hon'ble High Court. The Opposite Party No. 2 put the said order of learned Magistrate in execution by filing a petition under Section 125(3) of the Code of Criminal Procedure read with Section 128 of the Code of Criminal Procedure by the learned Magistrate, Malda in case No. 2(M)/2011 with a prayer for an order directing the husband to pay Rs. 192000/- for 128 months from the period from April, 2000 to December, 2010. The petitioner entered appearance in the said execution proceedings but the learned Magistrate without hearing the petitioner, was pleased to pass an order on 28.5.2012 for payment. The application for realization of maintenance for the period of 128 months from 18.4.2000 to December, 2011 is not permissible. Being aggrieved by and dissatisfied with the said order dated 28.5.2012, the petitioner filed revision before the Hon'ble Court as CRR No. 1275 of 2012 praying for quashing of the case. The learned Magistrate was pleased to reject the prayer of the petitioner and issued warrant on 23.7.2012. Heard learned counsel for the petitioner as well as the Opposite Party at length. I have duly considered their submissions and perused the impugned order. The learned Magistrate was pleased to reject the prayer of the petitioner and issued warrant on 23.7.2012. Heard learned counsel for the petitioner as well as the Opposite Party at length. I have duly considered their submissions and perused the impugned order. It was contended by the learned counsel for the petitioner that the application for realization of maintenance has to be filed within one year from the date it becomes due but in the instant case, such application was filed on the date of 18.4.2000 and hence the case is not maintainable. In support of his contention, learned counsel for the petitioner cited before me a decision as reported in (2007) 2 Cal Cr LR (Cal) 116. It was propounded there that application for execution to be filed within one year from the date of amount is due. That judgment does not appear to be helping to the present petitioner, being distinguishable. On the other hand, learned counsel for the Opposite Party submitted that there is no question of barred by limitation because original application was filed in the year 2000. The date of judgment was 27.12.10. It was directed therein that the amount of maintenance should take effect from the date of filing of this case. Thereafter, the petitioner, challenging that order, filed CRR No. 149/2011 and that was dismissed. Further, it appears that the present petitioner again challenged the order dated 28.5.2012 passed by the learned Magistrate in Exn. Case No. 2M/2011 in a proceeding under Section 128 of the Code of Criminal Procedure arising out of the main maintenance case. Therein, the Hon'ble Court while taking up the alleged plea of Bar of the claim by limitation gave liberty to the petitioner to file necessary petition before the learned Magistrate. A petition to that effect was filed on 20.7.12 in the court of learned C.J.M., Malda. The learned court disposed of the petition by rejecting the contention of the present petitioner. Now, it appears that one after another the present petitioner filed revisions. Naturally, there was delay. That apart, for laws’ delay or in other words, by implication of law, if any delay occurs, in that event, the wife should not suffer. Above all, the arrear maintenance relates from the date of filing of the original misc. case and the judgment of the original misc. case was passed on 27.12.12. Naturally, there was delay. That apart, for laws’ delay or in other words, by implication of law, if any delay occurs, in that event, the wife should not suffer. Above all, the arrear maintenance relates from the date of filing of the original misc. case and the judgment of the original misc. case was passed on 27.12.12. So, the question of limitation does not arise inasmuch as the proceedings under Section 125 of the Code of Criminal Procedure continued from 2002 to 27.12.2010. There was no scope for presentation of claim within one year from the date of filing of the case because no judgment was passed there. Now, the limitation for claiming of the entire period of maintenance ranging from the date of filing of the case way back in 2000 till 27.12.2010 will be one year from the date of passing of judgment on 27.12.2010. The claim under Section 125(3) of the Code of Criminal Procedure alongwith Section 128 of the Code of Criminal Procedure was presented by the Opposite Party/wife in Exn. Case No. 2M/2011 on 31.12.2010. That is well within time although the claim relates to a period of 128 months. There is no fault on the part of the wife to present such claim at a time because in terms of the judgment of the learned trial court arrear maintenance were ordered to be paid leaving no scope to pressing the claim within the period of one year after it becomes due. Above All, I put reliance on the decision of the Hon'ble Supreme Court as reported in AIR 2005 Supreme Court 2410 wherein it was propounded by the Hon'ble Court that while dealing with the question of limitation claim of arrear maintenance is not barred by limitation because the liability to pay maintenance is a continuing liability and Section 125 of the Code of Criminal Procedure is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife. Accordingly, I find no merit in the revision and the same stands dismissed and disposed of. I pass no order as to costs. Urgent Photostat certified copies, if applied for, be supplied according to rules.