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Maintenance arrears for one year only

Rajasthan High Court

Ganga Ram
vs
Jakali And Ors. on 10 April, 1991

Equivalent citations: I (1992) DMC 202, 1991 (1) WLN 340

Bench: N Jain
JUDGMENT
N.K. Jain, J.

1. This miscellaneous petition is directed against the order of Additional Sessions Judge, Sriganganagar dated 21-3-87 whereby he uphold the order passed by learned Munsif and Judicial Magistrate Nohar dated 7-10-86.

2. Brief facts giving rise to this petition are that by the order dated 15-12-83, the learned Magistrate ordered to grant maintenance of Rs. 200/- per month to the non-petitioner Smt. Jakali from the date of the application i.e. from 16-81, which was maintained in revision filed by the petitioner Ganga Ram by the learned Additional District Judge by order dated 3-6-86. Thereafter, an application was filed on 19-6-85 by the wife Smt. Jakali for payment of arrears of maintenance from 1-6-81 to 1-6-85 @ Rs. 200/- per month, alleging that she got Rs. 200/- out of that during the months and is entitled to a sum of Rs. 9,400/- and future maintenance, otherwise in default the husband Ganga Ram may be seat to jail. In reply, the petitioner has stated that arrears from 1-6-81 to 1-6-84 are beyond one year as such neither the non-petitioner entitled nor the Court can issue warrants for the arrears of that period. After hearing the parties, the learned Munsif and Judicial Magistrate has rejected the objections and issued warrants of attachment to realise the amount and awarded arrears on 7-10-86. A revision was filed but the same was dismissed. Hence, the petitioner has preferred this petition Under Section 482 Cr.P.C.

3. Mr. Bhagwati Prasad, learned Counsel for the petitioner has submitted that under proviso to Sub-section (3) of Section 125 Cr.P.C. there is clear bar and this bar is mandatory and therefore, Courts below have erred in awarding maintenance for the period from 1-6-81 to 1-6-84 and this Court under the inherent power can quash the impugned order. He has also placed reliance on the decision of Rabari Nagjibhai Haribhai v. Bai Zaber & Ors. (1974 Cr. L.J.-551)(V. 80 C 189) and Hagiri Dei & Anr. v. Budhiram Behera (1982 Cr. LJ.-491).

4. Mr. Doongar Singh, learned Counsel for the non-petitioner has not disputed this proposition of law.

5. I have heard Mr. Bhagwati Prasad, learned Counsel for the petitioner and Mr. Doongar Singh, learned Counsel for the non-petitioner and perused the record.

6. It is true that one can claim arrears for a period of one year from the date of filing of the application Under Section 125(3) Cr.P.C. and the Court does not have power to grant arrears beyond the period of one year.

7. In Rabari Nagjibhai Haribhai v. Bai Zaber & Ors. (supra) wife filed an application on 5th Jan., 72 for recovery of arrears of maintenance for a period of 34 months i.e. for the period between 4-2-69 and 31-12-71. The Court observed that merely filing application for setting aside that ex-parte order on July, 70 which came to be dismissed on 6th December, 1971, could not be treated as any legal impediment for enforcing the order passed in favor of the wife. Admittedly, no such application was filed and there being no legal impediment. The Court further obsreved that so far as maintenance amount was orderd for the period between the date of application and the date of order and other amounts of maintenance became due every month. It has been held that as it was impossible to bring the case within the provision of the Indian Limitation Act the application was time barred.

8 In Hagiri Dei & Anr. v. Budhiram Behera (supra) wife was granted maintenance of Rs. 20/- per month but the opposite party committed default in payment. Orders have been made in favour of the wife for claiming arrears by both the Courts. Husband filed a writ against these orders. The Court held that the first proviso to Sub-section (3) of Section 125 Cr.P.C. is clear and unambiguous. Acquiescence of the opposite party cannot confer jurisdiction on the Magistrate to enlarge the same. In certain circumstances, an application can be made for a period beyond one year e.g., where a pending application has been closed for statistical purposes and fresh application is filed for the period covered by the earlier application and the period subsequent thereto. There is no right conferred to the Court to enforce arrears of more than one year arrears.

9. In the instant case, Ms. Jakali had moved an application for grant of maintenance as early as on 1-6-81 which was decided only on 15-12-83. Merely filing of an application by husband for setting aside that order could not prevent her from filing such application for enforcement of the order. There was nothing to prevent the wife from making an application for the enforcement of the order passed in her favour within one year of the decision. Therefore, awarding of arrears beyond the period of one year and without there being stay from -6-81 to 1-6-84 is abuse of the process of the Court and as such the order dated 21-3-87 is liable to be quashed.

10. In the result, the petition is allowed and the order of learned Addl. Sessions Judge, Sriganganagar dated 21-3-87 is set aside.

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