1986 Supreme(MP) 659

IN THE HIGH COURT OF MADHYA PRADESH
K.L. SHRIVASTAVA, J.
Loonchand - Petitioner
Versus
Hemkanta - Non-Petitioner
Cr. R. No. 334 of 1985 (I)
Decided On : 05-03-1986

Headnote:(1) Criminal Procedure Code, 1973 – S. 125 – object of – it places right to maintenance on pedestals of a statutory right and thereby prevents destitution.

       (2) Criminal Procedure Code, 1973 – 8s. 125 (3) (Proviso) and 125 (1) – proviso is to ensure that person having order under S. 125 (1) should not sleep over.

       (3) Criminal Procedure Code, 1973 – S. 125 (3) – amount of maintenance – no separate application is required to recover amount for the period to come.

        Short Note

       1. On 18 – 1 – 82, the nun – applicant filed an application for recovery of arrears from 1 – 3 – 81 upto the period ending 31 – 12 – 81 and also for an order to the petitioner for regular payment of monthly allowance from 1 – 1 – 82 through the Court and it was prayed that in default of payment he be sent to jail.

       2. On 21 – 11 – 85, the petitioner started that the arrears upto 31 – 12 – 81 have been paid on 24 – 4 – 85 and the application for allowance for the period commencing from 1 – 1 – 82 be dismissed as there is no application as such for recovery of arrears within a month thereof as required by law.

       3. By the impugned order, the learned trial Magistrate ordered the petitioner to pay the arrears for the period between 1 – 1 – 82 to 3 – 12 – 85 by 10 – 12 – 85.

       4. The contention of the petitioner's learned counsel is that the impugned order is illegal and deserves to be set aside.

       5. The learned counsel for the petitioner relying on the decision in Shyam Beharilal's case (1959 All. L.J. 101) urges that under section 125 (3) of the Code, an application be made to recover only the arrears that have fallen due and not for the recovery of any amount that may fall due subsequently. Reliance was also placed on the decision in Jagannath's case (AIR 1968 Orissa 35).

       Held: The Orissa decision is distinguishable on facts and with great respect, I express my inability to subscribe to the view taken in the Allahabad decision. It is pertinent to advert to the relevant provision and the purpose behind It. The relevant provision of the Code referred to in the preceding paragraph relates to issue of warrant for levying the amount due and for sentence of imprisonment in respect of each month’s allowance remaining unpaid after execution of the warrant. The first proviso to Section 125 (3) of the Code is material. It reads thus:

       "provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due".

       6. Section 125 of the Code is designed to place the right to maintenance on the pedestal of a statutory right and thereby prevent destitution. It is in this background that the relevant provision has to be construed. The proviso extracted above is only to ensure that the person who has the order under Section 125 (1) of the Code does not sleep over and allow the arrears to grow. It cannot certainly be construed as giving a technical defence of the defaulting husband to deprive the wife who has been vigilant and has come to the Court with an application for levying the amount of arrears and for an order for the monthly allowance being regularly paid to her. The prayer for levying the amounts as and when they fall due is implicit in the application. In the circumstances of the case, there was no need. during its pendency to multiply applications for the purpose. Any fresh 'application would only have been in continuation of the prayer already made. The decision in Devideen's case (1986 JLJ 229) makes an illuminating reading, AIR 1968 Orri. 35 distinguished 1959 All, L.T. 101 dissented from, 1966 JLJ 229 relied on. Revision dismissed.