The liability to pay maintenance under Section 125 Cr.P.C is a continuing liability, and the arrears do not become time barred. The first proviso to Section 125 (3) Cr.P.C. does not extinguish or limit the entitlement of maintenance.

ANITA CHAUDHRY, J.

CRM-17069-2018

1. Application is allowed and Annexures P-4 and P-5 are taken on record.

CRR(F)-433-2016

2. The petitioner impugns the order dated 16.11.2016 passed by the Family Court, Ambala who had ordered the issuance of conditional warrants of arrest for recovery of maintenance amount.

3. I have heard both the sides.

4. It is not in dispute that a petition under Section 125 Cr.P.C. was filed by the respondent in April 2001 and maintenance of Rs. 2,000/- per month was allowed to the minor daughter by the Chief Judicial Magistrate, Ambala on 4.3.2006.

5. An execution petition was filed in May 2006 seeking recovery of the arrears which then were over Rs. 1,18,000/-. The Executing Court passed an order on 13.9.2011 and sent the petitioner to one month's imprisonment since the JD had stated that he had no money to pay. He did not express any willingness to pay the amount. The Executing Court instead of proceeding further with the execution consigned the file to the record room. An application was moved by the decree holder for taking up the file and to issue proceedings for recovery of the amount due. Since the decree holder made a statement that the JD had immovable property at Patiala, CJM Amabala vide its order dated 8.12.2011 transferred the execution to Patiala through proper channel.

6. When the matter came up before the concerned Court at Patiala, it was found that the JD did not have any property in Patiala and the Civil Judge (Jr. Divn.) vide its order dated 22.3.2016 disposed of the petition stating that since the JD had already undergone civil imprisonment of one month therefore, no further proceedings need to be taken up as he had already been punished and could not be punished again.

7. The minor through her mother filed an application under Section 128 Cr.P.C. in July 2016 for enforcement of the order dated 13.9.2011 and for recovery of the amount which was due to her as maintenance and it was pleaded that she was studying and her monthly expenses were growing and there were arrears to the tune of Rs. 2.5 lacs.

8. Notice was given to the JD. The lawyer representing JD appeared and made the statement that the JD had no property and there were no chances of effecting recovery. The Family Court issued conditional warrants of arrest for 6.1.2017 which have been assailed in this petition.

I have heard both the sides.

9. Counsel for the petitioner contends that recovery beyond a period of one month could not have been effected and even otherwise since the petitioner had already undergone custody of one month and the decree holder had not challenged the order passed by the Civil Judge (Jr. Divn.), Patiala, therefore that order became final. It was urged that the only remedy available with the respondent was a civil action and they could file a civil suit for recovery of the amount. Reliance was placed upon Kashinath Sethy versus Sanjukta Sethi and others 2011(3) R.C.R. (Criminal) 439, Shahad Khatoon and others versus Amjad Ali and others 1999 SCC (Criminal) 1029, Padam Sharma versus Vidya Devi 2000(1) SimLJ 137 and Poongodi and another versus Thangavel 2013(4) Criminal Court Cases 687 (S.C.).

10. On the other hand the submission on behalf of the respondent is that the Apex Court in Shantha @ Ushadevi and another versus B.G.Shivananjappa 2005(2) R.C.R. (Criminal) 796 has clarified that the Courts should not insist on filing successive applications and the maintenance is a continuing liability and the arrears do not become time barred and merely because the petitioner has undergone one month of custody would not mean that the arrears would be wiped out and Section 125(3) Cr.P.C. only limits the sentence to one month and it does not imply that the arrears would get washed away and the petitioner has not been paying the maintenance to the daughter.

11. The submissions made on behalf of the petitioner are without any basis. The sentence of one month undergone by the petitioner would not absolve him from payment