REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.             OF 2009 [Arising out of SLP (Crl.) No.6954 of 2007]

Amarendra Kumar Paul …..Appellant

Versus

Maya Paul & Ors. …..Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellants herein are aggrieved by and dissatisfied with a judgment  

and order  dated  23rd July  2007 passed  by  a  learned  Single  Judge of  the  

Calcutta High Court whereby and whereunder the order dated 15th February  

2006 passed by the Judicial Magistrate, 2nd Court, Berhampore, in Execution

Case No.186 of 2005 for execution of an order passed under Section 125 of  

the Code of Criminal Procedure (for short, ‘the Code’) was upheld.  

3. The  relationship  between  the  parties  is  not  in  dispute.   The  1st  

respondent is the wife of the appellant herein.  They have three children.  1st  

respondent  herein  filed  an  application  in  the  year  1984  for  grant  of  

maintenance in terms of Section 125 of the Code not only on her own behalf  

but also on behalf of her two minor daughters, viz., Bandhu Priya Paul and  

Bandhu Priti Paul as also her minor son, viz., Bandhu Prakash Paul from  

February  1983.   Pursuant  thereto  or  in  furtherance  thereof  an  order  was  

passed in her favour by a learned Magistrate on 24th August 1987 directing  

payment of maintenance @ Rs.500/- per month in favour of 1st respondent  

and @ Rs.125/- per month for the three minor children.   

An application for enhancement of the said amounts of maintenance  

was filed which was registered as Misc. Case No.6 of 1993.  The learned  

Chief Judicial Magistrate,  by a judgment and order dated 13th July 1994,  

directed enhancement of maintenance in respect of the said minor children  

@  Rs.450/-  per  month  from  February  1993.   A  criminal  revision  case  

thereagainst  filed by the appellant was dismissed by the learned Sessions  

Judge by an order dated 18th February 1997.  The said order was challenged  

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by the appellant before the High Court and the High Court dismissed the  

application being C.R.R.No.1852 of 1997 filed by the appellant by an order  

dated 12th March 2004 stating :

“13.  I  find,  therefore,  that  there  is  no  reason  whatsoever to interfere with the impugned order of  the  learned  Additional  Sessions  Judge,  Murshidabad dated 18.2.1997 in Criminal Motion  No.285/94  and  the  same  is  affirmed.   This  revisional  application  has  no  merits  and  is,  therefore, dismissed.”

4. In the meantime, in the year 1998, an application for execution of the  

order dated 13th July 1994 was filed in the court of Chief Judicial Magistrate,  

Murshidabad praying for maintenance for the period May 1997 and April  

1998.  The said application was dismissed opining that one of the objections  

taken therein was that all the children had attained majority.  The relevant  

portion of the said order dated 09th June 1999 runs as under  :

“It appears that this execution case is filed  for the maintenance allowance of three children of  the Petitioner and for the period from May 1997 to  April 1998 in execution of the order passed in their  favour on 13.7.1994.  It appears that the children  are  1)  minor  Bandhu Priya Pal,  2)  minor  Bandu  Priti Pal and 3) minor Bandhu Prokash Pal.

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Now it  appears  from the certified  copy of  the petition for maintenance dated 31.8.1984, that  the then age of the claimant Bandhu Priya Pal was  8 years and of the other two was 5 years being the  twin  of  their  parents.   Therefore  in  1997  all  of  them were in the age of 18 or more than 18 years.  Hence,  as  per  the  order  in  execution  and  the  provision of law on this point the claimants are not  entitled to maintenance after attaining the age of  majority i.e. 18 years and, therefore, the objection  sustained and the instant case stands dismissed.”

5. However, despite the same, the 1st respondent filed another Execution  

Case bearing No.186 of 2005 before the learned Judicial Magistrate Second  

Court,  Berhampore  claiming maintenance  @ Rs.450/-  per  month  on  and  

from February 1993 to May 2004.  By reason of an order dated 15th February  

2006, the learned Magistrate Second Court, Berhampore, directed as under :

“Now, in the present case, the Petitioner has  filed  an  affidavit  dated  6.5.05,  wherein  she  admitted  that  her  son  Bandhu  Prakash  Pal  has  become  major  on  11.5.97.   That  her  daughter  Bandhu Priya Pal has been married on 11.5.2003  and that Bandhu Priti Pal is still unmarried.  The  copy of this affidavit has duly been served to the  learned advocate for the OP but he did not file any  objection,  thereby  admitting  its  content.  Moreover,  at  the  time  of  hearing  the  learned  advocate  for  the  OP  admits  the  contents  of  the  affidavit.  

Hence, I am to hold that the son is entitled to  maintenance till attaining majority as per provision  

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of Clause (b), sub section (i), Section 125 Cr. P.C.  and that the daughters are entitled to maintenance  till marriage.

However, the application for the period from  May, 1997 to April  1998 has been dismissed by  this Court by order dated 9.6.1999 passed in Misc.  Ex. No.378 of 1998.  Hence, I am not inclined to  allow  maintenance  to  the  Petitioner  from  May  1997  to  April,  1998  as  the  same  was  earlier  rejected by this Court.  

Hence,  it  is  ORDERED  that  Bandhu  Prakash  Pal  is  entitled  to  get  maintenance  till  11.5.1997,  Bandhu  Priya  Pal  is  entitled  to  get  maintenance  till  11.5.2003  i.e.,  the  date  of  her  marriage  and Bandhu  Priti  Pal  is  entitled  to  get  maintenance  till  May,  2004,  as  claimed  in  the  petition.  All the three children are entitled to get  maintenance  since  February,  1993.   The  period  from May, 1997 to April, 1998, is to be excluded  in case of both the daughters of the Petitioner.”

6. Respondent no.1 filed a revision application thereagainst which was  

dismissed stating :

“Having considered the rival submissions of  the learned advocates appearing for the parties,  I  am of the opinion that the submissions made by  Mr. Mondal has sufficient force and he has very  correctly submitted that the question of limitation  for filing the execution case does not at all arise in  the instant case in view of the stay order passed by  the  learned  Sessions  Court  and  then  by  this  Hon’ble Court.   Thus, accordingly,  there was no  

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bar in entertaining the application for realization of  arrear maintenance.  This application has no merits  and stands dismissed.

I further, make it clear that while computing  the  amount  of  arrear  maintenance,  the  learned  Judge must take into account,  if any amount has  been paid towards the maintenance of the opposite  party  no.1  by  the  Petitioner  for  the  period  in  question and for that purpose the Petitioner shall  be  given  reasonable  opportunity  to  establish  the  same and if  the  learned judge finally  found that  any amount has been paid by the Petitioner for the  said  period,  the  same  is  to  be  adjusted  against  payment of arrear maintenance.”

7. Mr.  R.K.  Gupta,  the  learned  counsel  appearing  on  behalf  of  the  

appellant  would submit  that  the  execution application  for  the  purpose  of  

executing the order  granting maintenance for the minor  children was not  

maintainable as they had attained majority.  It was furthermore contended  

that the period of limitation prescribed for filing an execution application for  

executing  an  order  under  Section  125  of  the  Code  being  one  year,  the  

impugned judgment cannot be sustained.

8. The learned counsel appearing on behalf of the respondents, however,  

would support the judgment of the High Court.

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9. The learned Chief Judicial Magistrate, as noticed hereinbefore, in his  

judgment dated 09th June 1999, has categorically arrived at a finding of fact  

that in the year 1997, all the three children of the 1st respondent had attained  

majority.  Bandhu Priya Paul was 8 years of age on 31st August 1984.  She,  

thus, attained majority on or about 31st August 1994 whereas Bandhu Priti  

Paul and Bandhu Prakash Paul, who were twins, being aged 5 years on the  

said date, became major in 1997.

10. Sub-section (1) of Section 125 of the Code reads as under :

“125.  Order  for  maintenance  of  wives,  children  and  patents,-(1)  If  any  person  having  sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b)his legitimate or illegitimate minor child,  whether  married  or  not,  unable  to  maintain itself, or  

(c) his  legitimate  or  illegitimate  child  (not  being  a  married  daughter)  who  has  attained majority, where such child is, by  reason  of  any  physical  or  mental  abnormality or injury unable to maintain  itself, or

(d)his father or mother, unable to maintain  himself or herself,

a Magistrate of the first class may, upon proof of  such neglect or refusal, order such person to make  a  monthly  allowance  for  the  maintenance  of  his  

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wife  or  such  child,  father  or  mother,  at  such  monthly rate, as such magistrate thinks fit, and to  pay the same to such person as the Magistrate may  from time to time direct:

Provided that the Magistrate may order the  father of a minor female child referred to in clause  (b) to make such allowance, until  she attains her  majority,  if  the  Magistrate  is  satisfied  that  the  husband of such minor female child, if married, is  not possessed of sufficient means.

Provided  further  that  the  Magistrate  may,  during the pendency of the proceeding regarding  monthly allowance for the maintenance under this  sub-section, order such person to make a monthly  allowance for the interim maintenance of his wife  or such child, father or mother, and the expenses of  such  proceeding  which  the  Magistrate  considers  reasonable, and to pay the same to such person as  the Magistrate may from time to time direct:

Provided  also  that  an  application  for  the  monthly  allowance  for  the  interim  maintenance  and  expenses  for  proceeding  under  the  second  proviso  shall,  as  far  as  possible,  be  disposed  of  within sixty days from the date of the service of  notice of the application to such person.

Explanation.-For the purposes of this Chapter.-

(a) “minor”  means  a  person  who,  under  the  provisions of the Indian Majority Act, 1875 (9  of  1875)  is  deemed  not  to  have  attained  his  majority;

(b) “wife”  includes  a  woman  who  has  been  divorced  by,  or  has  obtained  a  divorce  from,  her husband and has not remarried.”

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11. An application for grant of maintenance, therefore, is maintainable, so  

far as the children are concerned, till they had not attained majority.  As a  

cause of action for grant of maintenance would arise only in the event  a  

person  having  sufficient  means,  neglects  or  refuses  to  maintain  his  

legitimate  or  illegitimate  minor  child  unable  to  maintain  itself.   Once,  

therefore, the children attained majority, the said provision would cease to  

apply to their cases

12. Sub-section (3) of Section 125 of the Code provides for a period of  

limitation, stating :

“(3) If any person so ordered fails without  sufficient cause to comply with the order, any such  Magistrate  may,  for  every  breach  of  the  order,  issue a warrant for levying the amount due in the  manner  provided  for  levying  fines,  and  may  sentence such person, for the whole, or any port of  each month’s allowance for the maintenance or the  interim maintenance and expenses of proceeding,  as  the  case  may  be,  remaining  unpaid  after  the  execution  of  the  warrant,  to  imprisonment  for  a  term  which  may  extend  to  one  month  or  until  payment if sooner made :

Provided that no warrant shall be issued for  the recovery of any amount due under this section  unless  application  be  made  to  the  Court  to  levy  such amount within a period of one year from the  date on which it became due:

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Provided further that if such person offers to  maintain his wife on condition of her living with  him,  and  she  refuses  to  live  with  him,  such  Magistrate  may  consider  any  grounds  of  refusal  stated by her, and may make an order under this  section  notwithstanding  such  offer,  if  he  is  satisfied that there is just ground for so doing.

Explanation.-If  a  husband  has  contracted  marriage with another woman or keeps a mistress,  it  shall  be  considered  to  be  just  ground  for  his  wife’s refusal to live with him.”

13. A Division Bench of this Court in the case of Shantha @ Ushadevi &  

Anr. v. B.G. Shivananjappa (2005) 4 SCC 468, held :

“7. It  is  true  that  the  amount  of  maintenance  became  due  by  virtue  of  the  Magistrate’s  order  passed on 20-1-1993 and in order to seek recovery  of  the  amount  due  by  issuance  of  warrant,  application shall be made within a period of one  year from the date the amount became due.  In the  present  case,  the  application,  namely,  Crl.Misc.Petition  No.47  of  1993  was  filed  well  within  one  year.   As  no  amount  was  paid  even  after the disposal of the matter by the High Court,  the  appellant  filed  IA  No.1  in  Crl.Misc.Petition  No.47 of 1993 wherein the arrears due up to that  date were calculated and sought recovery of that  amount under Section 125(3).  Thus, IA No.1 was  filed even when Crl.Misc.Petition No.47 of 1993  was pending and no action to issue warrant  was  taken in that proceeding.  Crl.Misc.Petition No.47  of 1993 which was filed within one year from the  date the amount became due was kept alive and it  

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was pending throughout.  The purpose of filing IA  on 16-6-1998 was only to mention the amount due  up to date.  The fact that the additional amount was  specified  in  the  IA  does  not  mean  that  the  application for execution of the order by issuing a  warrant  under  Section  125(3)  was  a  fresh  application  made  for  the  first  time.   As  already  noticed,  the  main petition filed in the year  1993  was  pending  and  kept  alive  and  the  filing  of  subsequent  IA  in  1998  was  only  to  specify  the  exact amount which accrued due up to that date.  Such  application  is  only  supplementary  or  incidental  to  the  petition  already  filed  in  1993  admittedly  within  the  period  of  limitation.   The  fact  that only a sum of Rs.5365 representing the  arrears  of  eight  months  was  mentioned  therein  does  not  curtail  the  scope  of  criminal  miscellaneous petition filed in 1993 more so when  no  action  was  taken  thereon  and  it  remained  pending.”

14. A period of limitation is provided for in terms of the aforementioned  

provision.  However, in a case of this nature, Section 15 of the Limitation  

Act would apply which reads as under :

“15.  Exclusion  of  time  in  certain  other  cases.-(1) In computing the period of limitation of  any  suit  or  application  for  the  execution  of  a  decree,  the institution or  execution of  which has  been stayed by injunction or order, the time of the  continuance of the injunction or order, the day on  which it was issued or made, and the day on which  it was withdrawn, shall be excluded.

(2) In computing the period of limitation for  any  suit  of  which  notice  has  been  given,  or  for  

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which  the  previous  consent  or  sanction  of  the  Government or any other authority is required, in  accordance with the requirements of any law for  the time being in force, the period of such notice  or,  as  the  case  may  be,  the  time  required  for  obtaining  such  consent  or  sanction  shall  be  excluded.

Explanation.-In excluding the time required  for  obtaining  the  consent  or  sanction  of  the  Government  or  any  other  authority,  the  date  on  which the application was made for obtaining the  consent or sanction and the date of receipt of the  order of the Government or other authority shall  both be counted.

(3) In computing the period of limitation for  any suit or application for execution of a decree by  any  receiver  or  interim receiver  appointed  in  proceedings for the adjudication of a person as an  insolvent  or  by  any  liquidator  or  provisional  liquidator  appointed  in  proceedings  for  the  winding  up of  a  company,  the  period  beginning  with the date of institution of such proceeding and  ending with the expiry of three months from the  date of appointment of such receiver or liquidator,  as the case may be, shall be excluded.

(4) In computing the period of limitation for  a suit  for possession by a purchaser at  a  sale  in  execution  of  a  decree,  the  time  during  which  a  proceeding  to  set  aside  the  sale  has  been  prosecuted shall be excluded.

(5) In computing the period of limitation for  any suit the time during which the defendant has  been  absent  from  India  and  from  the  territories  outside  India  under  the  administration  of  the  Central Government, shall be excluded.”

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15. In fact, the order of stay had been granted by the revisional court as  

also by the High Court in the aforementioned proceedings. The limitation for  

filing  application  for  execution  would  be  computed  upon  excluding  the  

period during which the order of stay was operating.  

16. We  may  place  on  record  that  the  notice  was  issued  only  on  the  

question s to whether the amount of maintenance could have been directed  

to be recovered despite the fact that the children had attained majority.   

17. It appears that the said question was formulated on the basis of the  

submission made at the Bar.  We have dealt with all the questions raised  

before us. In view of the findings arrived at by us, such a question does not  

arise for consideration.

18. It is clear from the order of the learned Magistrate that no order of  

maintenance  was  passed  in  favour  of  the  children  after  they  attained  

majority.  In that view of the matter, the question of recovery of any amount  

from the petitioners towards the maintenance granted to the children after  

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they had attained majority does not arise.  In this case the direction has been  

issued to recover the amount of maintenance only for the period prior to the  

sons’  attaining  majority  and the  daughters  getting  married  and hence  no  

inference with the impugned judgment, in this behalf, is called for.   

19. In any view of the matter, it, in our opinion, is not a fit case wherein  

we should exercise our discretionary jurisdiction even it be assumed that the  

Execution case was filed only by the respondent.

20. For the reasons aforementioned, this appeal is dismissed.  However, in  

the facts and circumstances of this case, there shall be no order as to costs.  

……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Cyriac Joseph]

New Delhi. August 4, 2009.

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