Right to apply for maintenance when accures.

This is a bid to axe down a claim made on the petitioner by his erstwhile wife as per Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the Muslim Women Act’) with an ingenious contention that the claim is barred by limitation.

2. Petitioner and first respondent were husband and wife. Two children were born in the wed-lock. On 11. 1986 the marriage was dissolved. Six and a half years later i.e. on 17. 1992 the first respondent (former wife) filed the application before a judicial magistrate of first class claiming reasonable and fair provision and maintenance. When petitioner got notice from the lower court, he filed the present petition invoking inherent jurisdiction of the High Court to quash the claim on the ground of limitation.

3. Contention of the petitioner is founded on Art.137 of he Third Division of Second Schedule to the Limitation Act, 1963 (for short ‘the Act’). As per the said Article, a period of three years is prescribed for "any other application for which no period is provided elsewhere in this Division" from when the right to apply accrues. According to the learned counsel, right to apply would have accrued at least on the expiry of "iddat" period which followed dissolution of marriage. He pointed out that even though the Muslim Women Act came into force only on 15. 1986, Sec. 3 got retrospective operation as held by a learned single Judge of this Court in Hyderkhan v. Meharunnissa, (1992)2 K.L.T. 330.

4. Art.181 in the Second Schedule to the Limitation Act of 1908 (old Limitation Act) corresponded with Art.137 of the present Limitation Act. Under the corresponding/Article in the old Limitation Act "application for which no period of limitation is provided elsewhere in this schedule or by Sec. 48 of the C.P.C." should have been filed within three years. There is a catena of decisions affirming the position that Art.181 of the old Limitation Act applied only to applications envisaged under the Code of Civil Procedure. But with the change in the collocation of words in the present Art.137 its applicability is not confined to petitions filed under the C.P.C. With the decision of the Supreme Court in Kerala State Electricity Board v. T.P.K. Aliumma, A.I.R. 1977 S.C. 282: 1976 K.L.T. 810, the position became well settled. The Supreme Court has laid down the law in the following words: "The words any other application under Art.137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Art. 137 would be petition or any application under any Act."

5. Shri.L.G. Poti, learned counsel for the first respondent argued that inspite of the marked change made in Art.137 the position still is that the Article is intended to apply only to petitions filed in a civil court. In support of the contention learned counsel has invited my attention to the following observations of the Supreme Court in Inder Singh v. D.D. Authority, A.I.R. 1988 S. C. 1007: "In view of the decision of this Court in Kerala State Electricity Board, Trivandrum v. T.P.K. Aliumma, 1976 K.L.T. 810: A.I.R. 1977 S.C. 282, it is now well settled that Art.137 of the Limitation Act, 1963 would apply to any petition or application filed in a civil court".

6. A learned single Judge of the Bombay High Court has taken the view that as the Supreme Court observed that Art.137 would apply to any petition or application filed in the civil court under any Act, a wedge has been driven between civil administration and criminal administration of justice for the applicability of the said article. Hence learned Judge has held in Ramkrishna v. Kusum Ramkrishna, I.L.R. 1982 Bom. 808, that Art.137 has no applicability to a petition filed under Sec.125 of the Code of Criminal Procedure.

7. In Kerala State Electricity Board, Trivandrum v. T.P.K. Aliumma, 1976 K.L.T. 810:

A.I.R. 1977 S.C. 282, Supreme