Point of Law: Limitation - Recovery of arrear maintenance - When main petition claiming arrear was pending and kept alive, filing of subsequent petition was only to specify exact amount accrued due upto date. Such subsequent application is only supplementary or incidental to petition already filed within period of limitation.

JUDGMENT :

S.G. CHATTOPADHYAY, J.

1. By means of filing this criminal revision petition under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. hereunder) and Section 19(4) of the Family Courts Act, petitioner has challenged the order dated 18.07.2019 passed by the Family Court, Udaipur in Criminal Misc. (Exe.) 118 of 2018 whereby and whereunder the Family Court has rejected the claim of the petitioners for recovery of arrear maintenance observing that petitioners are not entitled to the recovery of such arrear maintenance as their claim is time barred under Section 125(3) Cr.P.C.

2. A brief resume of the background facts would be necessary for deciding the case which is as under:

Petitioner Smt. Uma Majumder (Das) is the wife of the respondent and minor petitioner Ms. Souramin Das is their daughter. Claiming maintenance allowance for herself and their daughter, petitioner wife Smt. Uma Majumder (Das) approached the Family Court at Udaipur by filing a petition under Section 125, Cr.P.C. which was decided by the Family Court by a brief order dated 25.04.2013 [Annexure-1] passed in Criminal Misc. No. FC/UDP/67/2012 granting maintenance allowance of a sum of Rs. 1,000/- to the wife and Rs. 2,000/- to the child w.e.f the date of filing of the said petition and it was ordered by the Court that the arrear maintenance would be paid by the husband in 10 equal installments. Husband having defaulted in complying with the said order petitioner filed a petition under Section 125(3) Cr.P.C. for recovery of arrear which was registered as FC/UDP/3/17 (Ex). During the pendency of such petition petitioner further approached the Family Court by filing a petition on 05.05.2016 seeking enhancement of the allowance. Petitioner claimed enhancement of her monthly maintenance allowance from Rs. 1000/- to Rs. 3,000/- and for her daughter she claimed enhancement from Rs. 2,000/- to Rs. 8000/-. By a detailed judgment dated 06.03.2017 in Crl. Misc. FC/UDP/56/2016, Family Court enhanced her maintenance allowance from Rs. 1,000/- to Rs. 1500/- and that of her daughter from Rs. 2,000/- to Rs. 3000/- and it was ordered that the respondent husband would pay a total sum of Rs. 4500/- to the wife for maintenance of herself and her daughter.

3. Husband having defaulted in paying the maintenance allowance at the enhanced rate in terms of the said order dated 06.03.2017, petitioner filed successive petitions in the Family Court seeking enforcement of the order in terms of Section 125(3) Cr.P.C. In Crl. Misc. (Execution) 40 of 2018 which was filed by her on 12.04.2018 she claimed recovery of arrear falling due from 06.07.2017 to 06.04.2018 (Annexure-3). In Crl. Misc. (Execution) 65 of 2018 she claimed recovery of arrear falling due from 06.05.2017 to 06.05.2018. This was followed by another petition which was filed by the petitioner on 15.11.2018 for recovery of arrear for the period from 06.05.2018 to 06.11.2018 which was registered as Crl. Misc. (Ex) 118 of 2018 in which the impugned order dated 18.07.2019 was passed by the Family Court. It appears from the impugned order (Annexure-4) that the Judge, Family Court had taken up all the petitions together and passed a common order dated 18.07.2019 disposing her petitions observing as under:

“......All the said cases are fixed today and all the records are consulted together. It appears that for the same period she claimed maintenance separately in three different cases which is not at all fair. The petitioner has not approached the court with clean hands. After consulting all the said three records together on the surface it appears that she tried to mislead the court by filing three different cases for common period.

Anyway, here the first Proviso to section 125(3) of Cr.P.C. will come into play. It is obvious that the application for execution of maintenance order was not filed within the period of limitation as prescribed under the first proviso to section 125(3) Cr.P.C. Hence, i