The court emphasized the limitation on the recovery of arrears of maintenance, highlighting the provisions of Section 125 (3) Cr.P.C. and the interpretation that no application for execution of maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application.

JUDGMENT :

Syed Aftab Husain Rizvi, J.

1. Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.

2. This criminal misc. application U/s 482 Cr.P.C. is filed to quash the impugned order dated 05.08.2021 passed by Principal Judge Family Court, Bijnor in case no.868 of 2019 (Sudha Devi vs. Lav Kumar) under Section 128 Cr.P.C. By the impugned order, the learned court below has allowed the application U/s 128 Cr.P.C. filed by opposite party no.2 for recovery of arrears of Rs.36,000/- from 06.01.2011 to 06.01.2013 and consequently issued recovery warrant.

3. The opposite party no.2 instituted a proceeding under Section 125 Cr.P.C. for maintenance which was allowed on 19.01.2000 and Rs. 500/- per month maintenance allowance was granted in favour of the opposite party no.2. Later on she moved an application No.71 of 2005, under Section 127 Cr.P.C. for enhancement of maintenance and this application was allowed on 25.11.2009 and maintenance was enhanced from Rs. 500/- to Rs. 3000/- per month. Thereafter the opposite party no.2 moved an application no.14 of 2013 under Section 128 Cr.P.C. for recovery of arrears of maintenance from 06.01.2011 to 06.01.2013 i.e. 24 months @ Rs.3000/- per month total amounting to Rs. 72,000/- on 12.02.2013. Learned Magistrate after considering the entire evidence and material on record allowed this application in part for recovery of entire one year maintenance allowance of Rs.36,000/- and refused to recover the remaining 12 months arrears of Rs.36,000/- observing that it has become time barred. The opposite party no.2 again moved an application No.406 of 2014 U/s 128 Cr.P.C. for recovery of arrears of maintenance allowance from 06.01.2012 to 06.01.2013 i.e.12 months of Rs.36,000/- before the family court, Bijnor. This application was rejected by the Principal Judge, Family Court on the ground that earlier this point has been decided and no fresh order is required. Thereafter, the opposite party no.2 moved another application No.868 of 2019 on 25.10.2019 under Section 128 Cr.P.C. for recovery of balance amount of arrears of maintenance allowance from 06.01.2011 to 06.01.2013 of Rs. 36,000/- for 12 months. It is alleged in that application that earlier an application was moved for recovery of arrears from 06.01.2011 to 06.01.2013 for total amounting of Rs.72,000/- but the learned trial court has awarded only one years arrears maintenance amounting to Rs.36,000/-. Hence remaining arrears of maintenance for one year amounting to Rs. 36,000/- is still due from the applicant. The learned Principal Judge, Family Court by the impugned order has allowed the aforesaid application and has issued the recovery warrant for recovery of arrears of Rs.36,000/- against the applicant.

4. The contentions of learned counsel for the applicant are that the impugned order is apparently perverse, illegal, arbitrary and bad in the eye of law. The court concerned has earlier refused to recover the two years arrears of maintenance allowance observing that only one year arrears can be recovered and has refused to recover the arrears from 06.01.2011 to 06.01.2012. Recovery of Rs.36,000/- arrears from 06.01.2012 to 06.01.2013 has already been made. The opposite party no.2 moved another application for recovery of remaining amount of Rs. 36,000/- which was rejected on 11.12.2013. But the learned Principal Judge, Family Court on the subsequent application has reviewed the previous order and in illegal manner has allowed the application.

5. The learned AGA not disputed the aforesaid facts.

6. It is admitted fact that monthly maintenance of Rs.3000/- was granted in favour of opposite party no.2 on 25.11.2009. She moved an application for recovery of arrears from 06.01.2011 to 06.01.2013 for 24 months total amounting to Rs.72,000/- on 12.02.2013. This application was partly allowed for recovery of only one year arrears from 06.01.2012 to 06.01.2013 and it was also held that under provisions of law as