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1991 Supreme(AP) 129
Andhra Pradesh High Court
Judges : V.BHASKARA RAO
Takkalapally Laxmamma - Appellant
Versus
Takkalapally Rangaiah - Respondent
Decided On : 03-25-91
The limitation period for execution of a maintenance order under Section 125 (3) of the Cr.P.C. starts from the date of the order granting maintenance, not from the date of application for maintenance.
Headnote:
MAINTENANCE - SECTION 125 (3) - CODE OF CRIMINAL PROCEDURE, 1973 - LIMITATION FOR EXECUTION OF MAINTENANCE ORDER - PERIOD OF LIMITATION STARTS FROM THE DATE OF ORDER GRANTING MAINTENANCE - NOT FROM THE DATE OF APPLICATION FOR MAINTENANCE.
Fact of the Case:
The wife filed a petition under Section 125 (3) of the Code of Criminal Procedure (Cr.P.C.) for execution of a maintenance order granted in her favor on 9-12-1968. The court below dismissed the petition for the period prior to 1-2-1988, holding that the wife was entitled to maintenance only from 1-2-1988 to 31-1-1989 (i.e., for twelve months). The wife challenged this order in revision.
Finding of the Court:
The court held that the limitation period for execution of a maintenance order under Section 125 (3) of the Cr.P.C. starts from the date of the order granting maintenance, not from the date of application for maintenance. The court reasoned that the maintenance amount becomes due only after it is ascertained and fixed by the court and payable on a date later to such grant. Therefore, the wife was entitled to maintenance from the date of the order granting maintenance, 9-12-1988, and the petition under Section 125 (3) filed on 9-1-1989 was within the limitation period.
Issues: Whether the limitation period for execution of a maintenance order under Section 125 (3) of the Cr.P.C. starts from the date of the order granting maintenance or from the date of application for maintenance.
Ratio Decidendi: The court interpreted the first proviso to Section 125 (3) of the Cr.P.C., which states that no warrant shall be issued for 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. The court held that the expression "became due" means the date on which the maintenance amount is ascertained and fixed by the court and payable on a date later to such grant. Therefore, the limitation period for execution of a maintenance order starts from the date of the order granting maintenance, not from the date of application for maintenance.
Final Decision: The court allowed the revision petition and set aside the order of the court below dismissing the wife's petition for execution of the maintenance order for the period from 9-6-1977 to 1-2-1988. The court directed the court below to proceed ahead with the petition according to Section 125 (3) of the Cr.P.C. as indicated in the judgment.
( 1 ) THIS is a revision petition filed by the wife against the order of the Court below dismissing her petition filed under S. 125 (3) of the Code of Criminal Procedure for recovery of the past maintenance for the period from 9-6-77 to 1-2-1988.
( 2 ) THE brief facts necessary for disposal of this revision are : The wife filed a petition under S. 125, Cr. P. C. on 9-6-1977 seeking grant of maintenance. After contest the petition was allowed on 9-12-1968 granting the maintenance at Rs. 180. 00 per month from the date of application. That order has become final. In pursuance of this grant, the wife filed a petition under S. 125 (3), Cr. P. C. , on 9-1-1989 for execution of the maintenance order. The Court below holding that the wife is entitled to the maintenance from 1-2-1988 to 31-1-1989 (i. e. , for twelve months) dismissed the said petition under S. 12 (3), Cr. P. C. so far it relates to the period prior to 1-2-1988. Hence this revision.
( 3 ) MR. Mahesh Narayan, the learned counsel for the petitioner, submitted that by a reading of first proviso S. 125 (3), Cr. P. C. it is clear that the petition for execution of the maintenance order has to be filed within one year from the date on which the amount became due. In this instant case, the learned counsel submitted the amount became due only on 9-12-1988, when the Court granted maintenance on the application made therefore, and therefore the execution filed on 9-1-1989 is well within the contemplated period of one year. The learned counsel, therefore, contended that the order dismissing execution petition for the period in question is bad in law and merits to be set aside by ordering it for the full period.
( 4 ) THE respondent-husband, though served, remained absent and nobody represented him. The learned public prosecutor, therefore, was heard. He made his submissions supporting the order under revision. He contended that the first proviso to S. 125 (3), Cr. P. C. limits the period to one year from the date on which the maintenance amount has become due and therefore the dismissal of the petition to the extent over and above one year is exactly according to the spirit of S. 125, Criminal Procedure Code.
( 5 ) IN view of the rival contentions, the only point that arises for consideration in this revision is, what is the period of limitation to order an execution petition under S. 125 (3), Cr. P. C. for realisation of the amount of maintenance awarded under S. 125, Cr. P. C.
( 6 ) AT the outset, it us essential to set out S. 125, Cr. P. C. to decide the question stated supra. The section reads : "125 (1) If any person having sufficient means neglects or refuses to maintain - (a) his wife, unable to maintain herself, or (b ). . . . . . (c ). . . . . . (d ). . . . . . a Magistrate of First Class may, upon proof of such neglect or refusal order a person to make a monthly allowance for the maintenance of his wife. . . . . at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit. . . . . (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of application for maintenance. (3) If any person so ordered fails without sufficient causes 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 part of each month s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment is sooner made : Provided that no warrant shall be issued for 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. . . . .
( 7 ) THUS, S. 125 (1), Cr. P. C. , empowers the Court to grant maintenance to the wife under the circumstances envisaged therein. S. 125 (2) provi
