Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Yogendra Kumar Srivastava, J
Mohammad Usman – Appellant
Versus
State Of U.P. – Respondent
APPLICATION U/S 482 No. - 8718 of 2021

Advocates:
For the Appellants/Petitioners: T.N. Tiwari
For the Respondents: Pankaj Saxena, Sushma Soni

The one-year limitation period prescribed by the proviso to Section 125(3) of the Code of Criminal Procedure applies strictly to the recovery mode specified therein and does not govern the enforcement of maintenance orders under Section 128, as the underlying maintenance liability is continuing in nature.

Headnote:(A) Code of Criminal Procedure, 1973 - Sections 125(3) and 128 - Maintenance - Execution of maintenance order - Limitation - Whether the one-year limitation prescribed in the proviso to Section 125(3) applies to the enforcement proceedings under Section 128 - The provisos to a section are confined to the subject matter of the enacting clause to which they are appended and cannot be construed to limit or extinguish substantive rights under other provisions. (Paras 25-28, 38-39)

(B) Interpretation of Statutes - Proviso - Scope and ambit - A proviso must be limited to the subject matter of the main enacting clause - It cannot travel beyond the section to which it is appended or be used to import into the enacting part something which is not there. (Paras 30, 33-35)

Facts of the case:
The applicant filed an application under Section 482 of the Code of Criminal Procedure to quash execution proceedings initiated against him for the recovery of maintenance arrears. The applicant contended that the application for enforcement, filed three years after the initial maintenance order, was barred by the one-year limitation period stipulated in the proviso to Section 125(3) of the Code.

Findings of Court:
The court held that the limitation prescribed in the proviso to Section 125(3) applies solely to the specific mode of recovery through warrants and personal imprisonment under that sub-section. It does not act as a total bar or fetter on the substantive civil liability to pay maintenance, which is enforceable under Section 128 of the Code without being restricted by the one-year limitation applicable to Section 125(3).

Issues: Whether the one-year limitation period under the proviso to Section 125(3) of the Code of Criminal Procedure is applicable to the enforcement of maintenance orders initiated under Section 128.

Ratio Decidendi: The court maintained that the liability to pay maintenance is a continuing one. Since Section 128 is an independent enforcement mechanism and the proviso to Section 125(3) is specific to its own sub-section, the limitation period cannot be read into Section 128. A proviso serves to qualify the principal enacting clause it is attached to and cannot be extended to govern unrelated sections.

Result: Application dismissed.

Table of Content
1. factual basis of the maintenance execution application. (Para 1 , 2 , 3 , 4 , 5)
2. limitation period for section 125 vs section 128. (Para 6 , 7 , 8)
3. social purpose of maintenance under chapter ix crpc. (Para 9 , 10 , 11 , 12 , 18 , 19 , 20)
4. imprisonment is enforcement, not satisfaction of liability. (Para 13 , 14 , 15 , 16 , 17 , 21 , 22 , 23 , 24)
5. proviso to section 125(3) does not limit section 128. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39)
6. execution proceedings for maintenance are not time-barred. (Para 40 , 41)

AFR

1. Heard Sri T.N. Tiwari, learned counsel for the applicant and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing along with Ms. Sushma Soni, learned Additional Government Advocate for the State-opposite party.

2. The present application under section 482 of the Code of Criminal Procedure, 1973, (the Code) has been filed seeking to quash the proceedings of Execution Case No. 47 of 2018 (Shahar Bano Vs. Usman alias Bhai Lal) under Section 128 of the Code, Police Station-Sarai Mamrej, District Allahabad along with orders dated 13.02.2021/15.02.2021 passed by learned Additional Principal Judge, Family Court, Court No.-1, Allahabad.

3. The facts of the case as per the pleadings in the affidavit are to the effect that an application under section 125 of the Code filed by the opposite party no. 2 was allowed by means of an ex parte order dated 06.08.2015 with a direction to make payment of a monthly allowance of Rs. 1,000/- for life to the opposite party no. 2, and monthly allowance of Rs. 500/- each to the opposite party nos. 3, 4, 5 and 6, till they attain majority.

4. Proceedings for enforcement of the aforesaid order of maintenance under section 128 of the Code were initiated pursuant to an application dated 14.9.2018, registered as Execution Case No. 47/2018 wherein a prayer was made for recovery of the amount.

5. The order sheet of the execution proceedings, which has been placed on record, indicates that pursuant to a recovery warrant issued in the execution proceedings, the applicant appeared before the court and filed an application expressing his willingness to deposit fifty per cent of the amount due and pursuant thereto an order dated 13.12.2019 was passed directing that fifty per cent of the amount due i.e. Rs. 77,000/- be deposited and the remaining amount be deposited in instalments. It appears that in respect of recovery of the balance amount, an order dated 13.02.2021/15.02.2021 was subsequently passed. It is at this stage, that the present application under section 482 of the Code has been filed seeking quashing of the order dated 13.02.2021/15.02/2021 and also the entire proceedings of the Execution Case.

6. The principle ground which has been sought to be canvassed on behalf of the applicant to assail the proceedings of the Execution Case are that the order under section 125 (1) having been passed on 06.08.2015, the proceedings for enforcement of the order initiated under section 128 of the Code pursuant to the application dated 14.09.2018 would be barred by limitation being beyond the period of one year from the date of order under section 125(1). In this regard, he has sought to place reliance upon the proviso to sub-section (3) of section 125.

7. Learned Additional Government Advocate-I submits that the limitation prescribed under the proviso to sub-section (3) of section 125 would be applicable in respect of proceedings to be initiated under section 125(3) and would not apply to proceedings for enforcement of the order under section 128 of the Code, and accordingly quashment of the proceedings of the Execution case cannot be sought on this ground.

8. The ambit and scope of the powers to be exercised under Section 125 (3) of the Code and the question as to whether the limitation prescribed under proviso to Section 125 (3) would be applicable in respect of proceedings under Sectio

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Yogendra Kumar Srivastava, JMohammad Usman – AppellantVersusState Of U.P. – RespondentAPPLICATION U/S 482 No. - 8718 of 2021

Cases Referred (8)

Yogendra Kumar Srivastava, J
Mohammad Usman – Appellant
Versus
State Of U.P. – Respondent
APPLICATION U/S 482 No. - 8718 of 2021