J U D G M E N T

NEENA BANSAL KRISHNA, J

1. This is a case that clamours for the exercise of judicial conscience to address the conundrum of whether an individual‟s right to recover arrears in maintenance subsists even after the expiry of the period stipulated in section 125(3) Cr.P.C. It warrants our endeavour to determine whether the jurisprudential principle of Ubi jus ibiremedium which posits that every right has a commensurate remedy stands true when it is confronted with the letter of the law i.e. Section 125 Cr.P.C in this instance.

2. An Appeal under Section 19 of the Family Courts Act, 1984 is preferred against the judgment dated 17.05.2019 dismissing the suit filed by Smt. Nirmal Bajaj on behalf of minor Vasu Bajaj, for recovery of Rs.2,78,800/-on account of the maintenance by the Ld. Additional Principal Judge, Family Court, West District, Tis Hazari Courts, Delhi.

3. The facts in brief are that the Smt. Nirmal Bajaj, mother of the Appellant got married to Respondent Shri Rakesh Bajaj on 14.12.1999 according to Hindu Marriage Rites and Ceremonies. One child i.e. Master Vasu Bajaj, the Appellant, was born from the said wedlock on 13.11.2000. Disputes arose between the parties and allegations of being harassed and beaten mercilessly were leveled by Smt. Nirmal Bajaj against the Respondent husband. It was alleged that in January, 2003 when Smt. Nirmal Bajaj was sitting in her room, the Respondent husband and mother-in-law started abusing and beating Smt. Nirmal Bajaj and threw her and the appellant out of the matrimonial home. Thereafter, Smt. Nirmal Bajaj along with her son Vasu Bajaj shifted to a rented premises in West Patel Nagar in February 2003.

4. An application was filed on 25.02.2008 under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “D.V. Act”) wherein Smt. Nirmal Bajaj stated that she is working as UDC in Ordinance Depot, Shakurbasti and earning Rs.12,000/- per month. On the other hand, the respondent/husband is employed at State Bank of Patiala, Karol Bagh Branch, Delhi and earning about Rs.35,000/- per month. Smt. Nirmal Bajaj, therefore, sought maintenance in the sum of Rs.20,000/- per month aside from Rs.10 Lakhs as compensation and damages for mental and emotional distress and the right of residence in the matrimonial home.

5. The Respondent had contested the application by asserting that Smt. Nirmal Bajaj was earning more than Rs.16,000/- per month. While denying that his salary was Rs. 35,000, he stated that he was merely earning Rs. 20,000/- per month, out of which he was paying a sum of Rs.3,700/- per month towards the installment of his car and was also maintaining his dependent mother.

6. The learned Metropolitan Magistrate after considering the evidence of both the parties, granted maintenance @ Rs.5,000/- per month for the Appellant child from the date of petition i.e. 25.02.2008 vide judgment dated 07.01.2010 under Section 12 D.V. Act.

7. The Respondent assailed the said Order by way of an Appeal on 29.01.2010 before the Ld. Sessions Judge, Delhi in Criminal Appeal No.04/2010which was dismissed vide judgment dated 03.08.2010.

8. On the failure of the respondent to pay the monthly maintenance, the appellant filed an Execution Petition under Section 125(3) Cr.P.C for recovery of arrears in maintenance on 23.05.2012. The Order dated 04.07.2012 records that the Respondent tendered a sum of Rs.60,000/- to the Decree Holder and, the execution was disposed of as satisfied.

9. An application for the restoration of the Execution Petition for the balance amount was filed, however, it was dismissed by learned Metropolitan Magistrate vide Order dated 28.08.2012 with the observations that the execution can be filed within one year of passing of the Order/Accrual of arrears of maintenance. Thus, the appellant herein was entitled to maintenance for the period from 26.05.2011 to 25.05.2012. Since the Execution Petition was neither accompanied with an application for con