Back
1993 Supreme(Cal) 503
High Court Of Calcutta
Arun Kumar Dutta
MUSTARI BEGUM ALIAS JHARNA - Appellant
Versus
ABDUL RAFIQUE ALIAS MILON - Respondent
CRI. R. 2236 Of 1992
Decided On : 12/12/1993
BIMAN KANTI BASU, GITA DAS, MADHU SUDHAN ROY, TAMUR HOSSAIN
The amount of maintenance does not become barred by limitation simply because the order for maintenance has been passed more than one year after the date of the original application. Maintenance becomes due, although with effect from a back date, only when the order therefore is passed by a competent Magistrate.
Headnote:
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - LIMITATION - APPLICATION FOR MAINTENANCE FILED BY THE WIFE AGAINST THE HUSBAND - MAINTENANCE ALLOWED BY THE LEARNED MAGISTRATE DIRECTING THE HUSBAND TO PAY MAINTENANCE TO HER AND HER MINOR SON AT THE RATES STATED ABOVE FROM FEBRUARY 1985 BY HIS RELEVANT ORDER DATED 10.11.1987 - APPLICATION FILED BY THE WIFE FOR RECOVERY OF THE ARREARS OF MAINTENANCE FROM THE HUSBAND ON 9.3.1988 - APPLICATION WAS WELL WITHIN THE PERIOD OF ONE YEAR ENVISAGED IN THE FAST PROVISO TO SUBSECTION (3) OF SECTION 125 OF THE CODE - OBJECTION RAISED BY THE HUSBAND ON THE GROUND OF LIMITATION IS WITHOUT ANY FORCE WHATSOEVER.
Fact of the Case:
The wife filed an application under section 125 of the Code of Criminal Procedure, 1973 before the Second Court of the Judicial Magistrate at Suri, Birbhum, in the early part of 1985, claiming maintenance for herself and her minor son. The Magistrate allowed the application in part and directed the husband to pay maintenance at the rate of Rs. 200/- only per month for the wife and a sum of Rs. 75/- only per month for her minor son. The wife put the order to execution on 9.3.1988. The husband filed an objection before the Magistrate on the ground of limitation. The Magistrate rejected the husband's application. The husband filed a Revisional Application before the Sessions Judge, who allowed the application and set aside the Magistrate's order.
Finding of the Court:
The court held that the wife's application for recovery of the arrears of maintenance from the husband on 9.3.1988 was well within the period of one year envisaged in the fast proviso to subsection (3) of section 125 of the Code. The objection raised by the husband on the ground of limitation was without any force whatsoever.
Issues: Whether the wife's application for recovery of the arrears of maintenance from the husband on 9.3.1988 was barred by limitation.
Ratio Decidendi: The court relied on the first proviso to sub-section (3) of section 125 of the Code, which provides that no warrant shall be issued for the recovery of any amount due under this section unless an application is made to the Court therefore within a period of one year from the date on which it became due. The court held that the maintenance allowed by the Magistrate by his order dated 10.11.1987 could not conceivably have become due before the date of the said order. The arrears of maintenance allowed by the Court would clearly, therefore, become payable an the date of the order or on such future date, if any, as may be fixed by the Court for payment.
Final Decision: The court allowed the wife's Revisional Application and set aside the order of the Sessions Judge. The court directed the Magistrate to enforce the order of maintenance passed by him without any further delay.
Based on the provided legal document, here are the key points regarding the case:
- Case Details: The case involves Arun Kumar Dutta (Respondent) versus Mustari Begum Alias Jharina (Appellant), decided by the High Court of Calcutta on 12/12/1993 regarding Criminal Revision No. 2236 of 1992 (!) .
- Legal Issue: The primary issue was whether the wife's application for recovery of arrears of maintenance filed on 9.3.1988 was barred by limitation, as the original maintenance order was passed on 10.11.1987 (!) .
- Facts: The wife applied for maintenance in early 1985. The Magistrate allowed the application on 10.11.1987, directing the husband to pay maintenance from February 1985. The wife filed an execution application on 9.3.1988 for arrears. The husband objected on limitation grounds, claiming only 12 months of maintenance were due. The Sessions Judge initially set aside the Magistrate's order in favor of the husband, but the High Court reversed this (!) .
- Ratio Decidendi: The court held that maintenance does not become barred by limitation simply because the order is passed more than a year after the application. The amount becomes due only when the order is passed by a competent Magistrate. Therefore, the one-year limitation period starts from the date of the order (10.11.1987), making the application filed on 9.3.1988 well within the limit (!) .
- Key Statutory Provision: The court relied on the first proviso to sub-section (3) of Section 125 of the Code of Criminal Procedure, 1973, which mandates that an application for recovery must be made within one year from the date the amount became due (!) .
- Decision: The High Court allowed the wife's Revisional Application, set aside the Sessions Judge's order, and directed the Magistrate to enforce the maintenance order without delay (!) .
- Judicial Reasoning: The court emphasized that if the limitation period were counted from the date of the original application, it would render the power of the court to grant maintenance with retrospective effect infructuous, which was not the legislative intention (!) .
- Precedents Cited: The judgment referenced Muddari Bin v. Sukdeo Bin, Gabind Sabi v. Prem Devi, Abu Bakkar v. Mst. Ohidunnessa Bibi, and Gupteshwar Pandey v. Smt. Ram Peari Devi to support the view that limitation runs from the date of the maintenance order (!) .
( 1 ) THE instant Revisionist Application by the petitioner-wife (hereinafter referred to as wife) is directed against the order dated June 15, 1992 passed by the learned Additional Sessions Judge, Suri, Birbhum, in Criminal Motion No. 4 of 1992 before him, praying the Court for setting aside the said order on the grounds set forth therein.
( 2 ) THE wife had filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter shortened into Code) before the Second Court of the Judicial Magistrate at Suri, Birbhum, in the early part of 1985, registered as Misc. Caw No. 22 of 1985/t. R. To 184 of 1985 against the opposite-party-husband (hereinafter referred to as husband) claiming maintenance at the rate of Rs. 300/- only for herself and sum of Rs. 75/- only for her minor son per month on the grounds stated therein. The learned Magistrate after hearing the parties concerned had allowed the wife's said application in part by his judgment and order dated November 10, 1987 directing the husband to pay maintenance at the rate of Rs. 200/- only per month for the wife and a sum of Rs. 75/- only per month for her minor son. The wife had thereupon put the said order to execution on 9. 3. 1988 under section 125 (3) of the Code, registered as Misc. Execution Case No. 7 of 1988.
( 3 ) AFTER getting notice of the said Execution Case, the husband had appeared and filed an objection before the learned Judicial Magistrate on 10. 8. 91 on the ground of limitation contending that the wife would not be entitled to get maintenance for more than 12 months. The learned Magistrate, upon hearing the parties, had rejected the husband's aforesaid application by his order dated December 7. 1971 for the reasons recorded by him. 4. The husband had thereafter moved a Revisional Application against the aforesaid order of the learned Magistrate dated 7. 12. 91 before the learned Sessions Judge at Suri, Birbhum, registered as Criminal Motion No. 4 of 1992. The learned Additional Sessions Judge at Suri, Birbhum, had allowed the said Revisions) Application by his judgment and order dated June 15, 1992 setting aside the aforesaid order of the learned Magistrate for the reasons recorded by him.
( 4 ) BEING aggrieved by the order so passed by the learned Additional Sessions Judge, the wife has exercised this Court in Revision for the grounds made out by her.
( 5 ) IT is an admitted position that the application for maintenance filed by the wife against, the husband had been allowed by the learned Judicial Magistrate concerned by his order dated 10. 11. 1987 directing the husband to pay maintenance to the wife and her minor son at the rates indicated above from February, 1985. The wife had thereupon filed an application on 9. 3. 88 before the learned Magistrate for recovery of maintenance from the husband in terms of the said order from February, 1985 to February, 1988, whereupon the husband had filed an objection before the learned Magistrate on the ground of limitation contending that the wife would not be entitled to claim maintenance for more than 12 months. The husband's said plea had been overruled by the learned Magistrate, but was accepted by the Additional Sessions Judge by his impugned order for the reasons recorded therein. The learned Additional Sessions Judge, relying upon the decisions in Muddari Bin v. Sukdeo Bin, AIR 1967 Cal 136 and Jangam Srinivasa Rao v. Jangam Rajerwari and anr. 1990 Cr LJ 2506, which do not at all appear to be applicable to the facts and circumstances of the instant proceedings, was of the opinion that the claim of maintenance exceeding 12 months in one petition is not acceptable, and the wife would not be entitled to claim maintenance for a period of 12 months preceding the date of filing of the execution case. But the decision so arrived at by the learned Additional Sessions Judge could hardly be sustained with the first proviso to sub-section (3) of section 125 of the Code, as it i
