O R D E R

% 13.08.2024 CRL.M.A.-24052/2024

3. Exemption allowed, subject to all just exceptions.

4. Application stands disposed of.

CRL.M.C. 6284/2024

1. This petition is filed challenging order dated 4th May 2024 passed by the Family Court, North District, Rohini Courts, New Delhi dismissing the Execution Petition No.164/2023 on the ground that it was declared as being time barred and seeks restoration of execution petition.

2. The execution petition was filed seeking maintenance granted for the period 24th March 2018 to 23rd March 2019; execution was filed on 6th July 2023 along with other execution petitions being Execution Petition No.163/2023, Execution Petition No.168/2023 and Execution Petition No.165/2023, being execution for subsequent periods between 2019 to 2022. 3. The instant execution petition, as well as three other execution petitions, filed on 6th July 2023, were dismissed on ground of being time barred under Section 125 (3) Cr.P.C. Two other petitions were admitted since they were filed in time.

4. Counsel for petition states that notwithstanding bar under provision Section 125 (3) Cr.P.C., for issue of warrants, the Courts can proceed under Section 128 Cr.P.C., for enforcement of maintenance orders, which can be done through attachment of property, and not necessarily through arrest.

5. For this, he relies upon decision of Allahabad High Court in Mohammad Usman v. State of U.P., 2021 SCC OnLine All 640 where in para 38 and 39 is stated as under:

“38. Applying the aforesaid principles of statutory construction, the proviso to sub-section (3) of Section 125 would have to be held to be confined to the section which precedes it. The limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125(3) cannot be held to travel beyond or stretch to an extent so as to being within its ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code.

39. It may, therefore, be deduced that the scope of Section 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.”

6. He further relies on decision of Supreme Court in Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405; para 5 of the said decision states as under:

5. The scheme of the provisions embodied in Chapter IX of the Code comprising Sections 125 to 128 which constitutes a complete code in itself requires to be comprehended. It deals with three questions viz.: (1) adjudication as regards the liability to pay monthly allowance to the neglected wife and child etc., (2) the execution of the order on recovery of monthly allowance, and (3) the mode of execution of an order for monthly allowance. Now, one of the modes for enforcing the order of maintenance allowance with a view to effect recovery thereof is to impose a sentence of jail on the person liable to pay the monthly allowances.

7. On petitioner taking steps through all permissible modes, including e- mail, notice be issued to respondent, returnable before this Court on 9th October 2024.

8. Order be uploaded on the website of this Court.

ANISH DAYAL, J AUGUST 13, 2024/sm