IMPORTANT POINT
Minors seeking enforcement of maintenance order under Section 125(3) of CrPC is entitled to get benefit and protection of legal disability provided under Section 6 of Limitation Act.

ORDER

K. Harilal, J.—The Revision Petitioner herein in the respondent in MP No. 51 of 2012 in MC No. 345 of 2006 on the files of the Family Court, Muvattupuzha. He is the husband of the 1st respondent and the respondent 2 and 3 are the minor children aged 10 years and 7 years respectively, born in that wedlock. The respondents herein filed MC No. 345 of 2006 before the Family Court, Ernakulam seeking maintenance allowance from the Revision Petitioner herein. The above MC was allowed by an order dated 16.10.2009 directing the Revision Petitioners to pay maintenance allowance @ 7,750 per month to the respondents 1 to 3 from 2.12.2006, the date of petition.

2. To enforce the said order, on 29.12.2012 the Family Court issued warrant under Section 421 (b) Cr.P.C, since the balance due from the Revision Petitioner as on that date was

Rs. 1,05,750. Tate Revision Petitioner challenged the above order before this Court by filing R.P. (FC) No. 32 of 20l3. This Court, as per order dated 29.1.2013, set aside the order dated 29.12.2012 and directed the Family Court to hear both parties and to pass an order afresh in accordance with law.

3. The impugned order was passed in M.P. No. 51 of 2012, a petition filed by the respondents under Section128 of the Criminal Procedure Code to realise the total amount of Rs 1,23,750 from the Revision Petitioner. The respondents have claimed arrear for 55 months i.e., for the period from 2.12.2006 till 21.7.2011, the date of filing M.P. 51/2012. This Petition was opposed by the Revision Petitioner contending that the respondents are not entitled to claim maintenance for more than one year. As per the proviso to sub-section (3) of Section 125, no warrant shall be issued for recovery of any amount due under the above section, unless the application is made within a period of one year from the date on which it became due. The respondents can claim arrear only for one year prior to the date of filing of the petition.

4. The Court below considered the question whether the respondents are entitled to realise Rs.1,23,750 from the Revision Petitioner, i.e., whether the respondents are entitled to claim arrear for a period beyond one year. After considering the rival contentions, the Family Court found that the respondents are entitled to get the full amount as claimed i.e., the period beyond one year. The legality, propriety and correctness of this order is under challenge in this Revision Petition.

5. Sri. Saigi Jacob Palatty, the learned counsel for the Revision Petitioner submits that the impugned order is illegal, unsustainable and issued in a mechanical manner without application of mind. The Court below had clearly erred in not considering, whether the application has been filed within the prescribed time: As per the proviso to sub-section (3) of Section 125 of the Cr.P.C., the application should have been presented by the respondents within one year from the date on which the amount has become due; but that aspect was not considered by the court below in its correct perspective. But, in the instant case maintenance has become due on 16.9.2009. Therefore, as per the proviso to sub-section (3) of Section 125, the execution ought to have been filed on or before 16.10.2010. But in this case the execution petition was filed only on 21.7.2011, claiming the entire arrear of Rs.1,23,750. The amount claimed, is the amount accrued for a period beyond one year from the date on which it became due. The learned counsel further cited the decision in Ganga Prasad v. Gomti.1

6. Per contra, Sri. T.K. Sajeev, the learned counsel for the respondents submits that the respondents 2 and 3 are minors, aged 10 years and 7 years respectively. So they are legally disabled to sue or be sued during the period of minority. Therefore, they are entitled to get the benefit and protection under Section 6 of the Limitation Act. Consequently, the period of one year provided for initiation of enforcement proceedings under Section 125(3) of th