The First Proviso to Section 125(3) of the Code of Criminal Procedure does not bar the recovery of maintenance allowance for a period exceeding 12 months prior to the date of filing of the application, if the order of maintenance was set-aside and restored by a higher court.

S.B. Sakrikar, J.

1. This is a revision directed against the order dated 14.12.1992 passed by the IInd Additional Sessions Judge, Dewas Camp Kannod in Criminal Revision No. 7/90. Thereby the learned Additional Sessions Judge set-aside the order dated 14.12.1989 passed by the Judicial Magistrate, First Class, Khategaon in Misc. Criminal Case No. 9/89 by which the learned Magistrate found the non-applicant entitled for the recovery of maintenance allowance preceding one year from the date of filing of the application dated 3.3.1989 under Section 125(3) of the Code of Criminal Procedure.

2. The brief facts of the case are that the non-applicant Sitabai filed an application against the present applicant under Section 125 of the Code of Criminal Procedure for awarding maintenance allowance to herself and also to her minor child. The maintenance claimed by her was Rs. 300/- per month. The said application was opposed by the applicant Premchand. The learned Trial Court by its order dated 1.11.1989 partly allowed the application and awarded the maintenance at the rate of Rs. 100/- per month in favour of the minor child namely Manak Chand. This order of maintenance was affirmed by the Hon'ble High Court of Madhya Pradesh, in Criminal Revision No. 197/87 vide its order dated 12.1.1989. The non-applicant on 3.3.1989 filed an application against the present applicant under Section 125(3) of the Code of Criminal Procedure for the recover)' of the entire amount of maintenance from the original order of the Trial Court dated 4.11.1985. The application was resisted by the applicant, Premchand on the ground that Sita Bai is only entitled for the recovery of accrued maintenance allowance of one year prior to the date of filing of the application under First Proviso to Section 125(3) of the Code of Criminal Procedure. The learned Magistrate allowed the objection of the applicant and ordered only for the recovery of the accrued amount of maintenance for one year prior to the date of filing of the application dated 3.3.1989.

3. Aggrieved by the order of the Magistrate dated 14.12.1989, the non- applicant Sitabai filed a revision petition before the Second Additional Sessions Judge Dewas Camp, Kannod. The learned Additional Sessions Judge allowed the said revision petition filed by the non-applicant and passed the impugned order holding that the non-applicant Sita Bai is entitled to recover the entire amount of the maintenance from the original order of the Trial Court dated 1.11.1985, hence this revision.

4. I have heard the arguments of Mr. Bhagwan Singh, Advocate, learned Counsel for the non-applicant.

5. The only question arises for consideration in this revision petition is whether the order passed by learned Additional Sessions Judge, Dewas Camp, Kannod, holding the non-applicant entitled to recover the entire amount of maintenance is legal in view of the First Proviso to Section 125(3) of the Code of Criminal Procedure.

6. It is contended in the revision petition filed on behalf of the applicant that in view of the First Proviso to Section 125(3) of the Code of Criminal Procedure, the non-applicant is entitled to recover the maintenance allowance only for a period of 12 months prior to the date of filing of the application. The learned Additional Sessions Judge erred in holding the non-applicant entitled to recover the entire amount of the maintenance from the date of order of the Magistrate dated 1.11.1985.

7. The learned Counsel for the respondent contended that the present applicant has filed a revision petition before the Additional Sessions Judge against the order of maintenance passed by the learned Magistrate dated 1.11.1985. During the pendency of this revision petition undertaking of the non-applicant, the recovery of maintenance allowance was stayed vide order dated 3.12.1985. The revision petition was decided against the non-applicant as per the Court order dated 20.7.1987 of the learned Additional Sessions Judge, Dewas Camp, Kan