Virnal Kumar vs Siya Bai - 1993 Supreme(MP) 301

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Masood Ali for applicant; G. S. Baghel for non-applicant.

Headnote:Criminal P.C., 1973 -- S. 125 (3) first proviso -- amount of maintenance -can be recovered if application for recovery is made within one year from the order -- arrears for more than one year cannot be enforced.
        naM izfdz;k lafgrk] 1973 & /kkjk 125 ¼3½ izFke ijarqd & Hkj.kiks"k.k dh jde & olwy dh tk ldrh gS ;fn vkosnu vkns‘k ds ,d o"kZ ds Hkhrj fd;k x;k gS & ,d o"kZ ls vf/kd ds cdk;k olwy ugha fd, tk ldrsA
        From a bare reading of the first proviso to section 125 (3) Cr. P.C. it is clear 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. In 1982 Cr. L.J. 491, (Hagiri Devi and another v. Budlziram Behara) (Orissa High Court), "it has been held that limitation for recovery of maintenance first proviso to section 125 (3) Cr. P.C. is clear and unambiguous and that the Court cannot enforce arrears of more than one year and that acquiescence of defaulting party does not empower the Court to extend the period." In 1988 Cr.L.J. 638 (Rajasthan High Court), (Govind Sahaiv. Prem Devi), it has been laid down that, "proviso to section 125 (3) Cr. P.C. expressly provides that no warrant shall be issued for the recovery of any amount due under section 125 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."
        Held: In the instant case, it is now to be seen as to whether, the present respondent/applicant, Smt. Siya Bai was entitled to recover the arrears of maintenance for the period dated 17.12.84 till 17.11.1987, at the rate of Rs. 150/per month, and whether, the period of limitation would be extended on the ground that the revision petition preferred on behalf of the petitioner, Vimal Kumar against the order dated 17.12.1984 passed in case No. 12/83 by the JMFC., Sagar, awarding maintenance at the rate of Rs. 150/- per month to Smt. Siya Bai, had been dismissed by the concerned Sessions Judge, Sagar vide order dated 29.7.1987. In my opinion, respondent/applicant, Smt. Siya Bai would not be entitled to get the aforesaid benefit of limitation from order dated 29.7.87 because from her own application (Annexure P-2), it is clear that she had made application for recovery of arrears of maintenance in M. J. C. 40/85 and, that the same was dismissed on 4.12.85 by the J. M. F. C., Sagar, and that no steps had been taken on behalf of Smt. Siya Bai against the said dismissal. The present respondent/applicant, Smt. Siya Bai would, therefore, in view of first proviso to section 125 (3) Cr. P.C., would be entitled to recover arrears of maintenance allowance as per her application filed on 17.11.1987 for the period of 12 months only from 17.11.1986 to 17.11.1987, at the rate of Rs. 150/- per month which would come to Rs. 1,800/- only and not for the entire amount of arrears Rs.5,250/-.
        For the aforesaid reasons, the impugned order dated 21.2.1991 passed by J.M. F.C., Sagar in M. J. C. 8/97 cannot be upheld. It may further be mentioned that the present petitioner/non-applicant, Vimal Kumar has already paid or deposited a total sum of Rs. 2, 300/- i.e., 500/- on 7.6.90, Rs. 500/- on 29.8.90 and Rs. 1,300/- on 27.12.90 (as mentioned in revision petition and that, a further sum of Rs. 2,000/- has already been paid vide order of this Court dated 3.4.91 towards the arrears of maintenance and so also the impugned order dated 21.2.91 in this revision petition directing for non-bailable warrant of arrest to the petitioner/non-applicant Vimal Kumar cannot be said to be justified and so, the same cannot be upheld. For the aforesaid reasons, the revision petition filed on behalf of petitioner/non-applicant Vimal Kumar against the respondent/applicant, Smt. Siya Bai is allowed and the impugned order dated 21.2.91 passed by J. M. F. C., Sagar in M. J. C. 8/87 is quashed. 1982 Cr L J 491 and 1988 Cr L J 638 relied on. Revision allowed.

Judgement Key Points

The first proviso to Section 125(3) Cr.P.C. mandates that no warrant for recovery of maintenance arrears shall issue unless an application is made within one year from the date the amount became due. (!)
Arrears of maintenance exceeding one year cannot be enforced through recovery proceedings. (!)
The one-year limitation period under the first proviso to Section 125(3) Cr.P.C. is clear, unambiguous, and cannot be extended by the court's enforcement powers or the defaulting party's acquiescence. (!)
Dismissal of a prior recovery application bars recovery of those specific arrears, and no further steps against such dismissal extend the limitation for older arrears. (!)
Pendency or dismissal of a revision against the original maintenance order does not extend the one-year limitation for recovery applications. (!)
In recovery applications, only arrears for the 12 months immediately preceding the application date are recoverable at the awarded maintenance rate. (!)
Prior payments or deposits by the maintenance obligor toward arrears must be accounted for, potentially satisfying recoverable amounts. (!)
Issuance of a non-bailable warrant for recovery is not justified where recoverable arrears are limited or already satisfied by payments. (!)
An impugned recovery order exceeding the one-year limitation is liable to be quashed on revision. (!)

Virnal Kumar vs Siya Bai - 1993 Supreme(MP) 301