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CASE NO.: Appeal (crl.)  673 of 2005

PETITIONER: Shantha @ Ushadevi & Anr.

RESPONDENT: B.G.Shivananjappa

DATE OF JUDGMENT: 06/05/2005

BENCH: P. VENKATARAMA REDDI & A.K. MATHUR

JUDGMENT: J U D G M E N T  

(Arising out of S.L.P.(Crl.)No.5723 of  2004)

A.K. MATHUR, J.

       Leave granted.

       Brief facts giving rise to this appeal are that the appellant,  Shantha @ Ushadevi and Kusuma, a minor represented by her  mother-guardian  filed a petition under Section 125 of the Code  of Criminal Procedure being Criminal Petition No.2 of 1991 before  the trial Court against respondent claiming for maintenance. The  said criminal petition was allowed by the trial court by its order  dated January 20, 1993 awarding a sum of Rs.500/- to the  appellant, the wife of the respondent and a sum of Rs.300/- to  Kusuma, the daughter for maintenance.  The appellant filed  Criminal Miscellaneous Petition No.47 of 1993 under Section  125(3) of the Code of Criminal Procedure claiming an amount of  Rs.5,365/- as arrear maintenance calculated from January 20,  1993 (i.e. the date of the trial court’s order granting  maintenance) to August 31, 1993.  Respondent filed a criminal  revision before the Sessions Judge, Tumkur being Crl. Revision  Petition No.35 of 1993 against the order passed by the  trial  court.  This revision petition was dismissed by the Sessions Judge  by its order dated June 26, 1997 affirming the order passed by  the trial court. Thereafter, the respondent took up the matter  before the High  Court of Karnataka at Bangalore  by filing a  criminal revision petition being Cr.R.P.No.2297 of 1997 against  the order passed by the Sessions Judge, Tumkur on June 26,  1997. The said revision petition was dismissed by the High Court.  After the affirmation of the order by the High Court, an interim  application being I.A.1  was filed  in Criminal Misc. Petition No.47  of 1993 claiming arrears of maintenance for the period from  January 20, 1993  i.e. the date of the trial court’s order till the  date of filing the I.A. 1. i.e., 16th June,  1998 for a sum of Rs.  46,000/-. The respondent deposited a sum of Rs.5,365/- towards  the maintenance  from January 20,1993 till August 31, 1993.   However,  IA-1  filed by the appellant for arrears of maintenance  in  Crl. Misc. Petition No.47 of 1993 claiming maintenance of  Rs.46, 000/- was objected  by the respondent contending that  the appellant cannot claim arrears of maintenance beyond a  period of one year under first proviso to Section 125(3) of the  Code of Criminal Procedure being  barred by limitation. The trial  court by its order dated July 13, 2000 dismissed the IA-1 being  barred by limitation. The appellant thereafter filed a criminal  revision  which came to be registered  as Criminal Revision

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Petition No.194/ 2000 before the learned Sessions Judge,  Tumkur. The said criminal revision petition was allowed by the  learned Sessions Judge by its order dated November 23, 2002  and the matter was remanded back to the trial court. Learned  Sessions Judge observed that there was no need of filing a fresh  petition during the pendency of the application under Section  125(3) Cr. P .C.  for maintenance which has fallen due for the  period post application and it is implicit  in the powers of the  court to make an order directing the husband to make payment of  arrears of maintenance up to the decision while disposing of the  application for recovery of arrears of maintenance.  The learned  Sessions Judge further observed that it is not required to file a  fresh application which may lead to multiplicity of litigations.  Learned Sessions Judge further held that the I.A.1 filed in  Criminal Misc. Petition No.47 of 1993 claiming maintenance was  within limitation.  Aggrieved against this order of the learned  Sessions Judge, respondent filed criminal revision  being Crl. R .P.  No.753 of 2003 before the High Court of Karnataka at  Bangalore. The High Court allowed the criminal revision and set  aside the order of the learned Sessions Judge holding that the  said application was barred by limitation. Aggrieved against this  order of the High Court passed in Criminal Revision Petition  No.753 of 2003 on March 11, 2004 the present Special Leave  Petition was filed by the appellants.                 It was submitted before the learned Single Judge of  the High Court that under proviso to sub-section (3) of Section  125 of the Code of Criminal Procedure no warrant can be issued  to levy the amount due  beyond a period of one year. Therefore,  the application i.e. I.A.No.1  filed in Crl. Misc. Petition No.47 of  1993 is barred by limitation. However, Crl. Misc. Petition No.47 of  1993 for recovery of the amount of arrears was allowed to the  extent of Rs.5600/- for the period from January 20, 1993 to  August 31, 1993 i.e. for a period of eight months. Subsequently,    I.A.1 was filed on 16th June, 1998 for recovery of arrears from  January 20, 1993 till the date of its filing,  i.e. 16th June, 1998.  This was objected to by the respondent-husband. Learned Single  Judge of the  High Court after considering the matter took the  view that the arrears from September 1, 1993 to June 16, 1998  was barred by limitation  and therefore, reversed the judgment  of the learned Sessions Judge who had opined that there was no  need for the appellants to file  I.A.1 during the pendency of the  Criminal Miscellaneous petition No.47 of 1993 as the appellants  were entitled to the arrears of maintenance right from the date  the Magistrate passed the order.

               We have heard learned counsel for the parties and  perused the records. The facts that emerge are that by an order  dated 20th January, 1993, passed by the Judicial Magistrate of  Class I, Gubbi, the appellant No.1 was granted maintenance at the  rate of Rs.500/- per month for herself and Rs.300/- for her  minor daughter.  This order of grant of maintenance was  affirmed by the High Court when the revision petition filed  against this order was dismissed by the High Court on December  18, 1997.           In order to recover the amount, as per the order of the  Judicial Magistrate, the appellant filed Crl. Misc. Petition No. 47  of 1993 on 1.9.1993 showing the arrears of maintenance for the  period of eight months.  During the pendency of revision petition  in the Sessions Court and the High Court,  the respondent did not  pay any amount nor did the Magistrate issue a warrant in terms  of section 125(3).   After the disposal of the matter by the High  Court, the appellant filed an I.A. being I.A. No. 1 in Crl. Misc.  Petition No. 47 of 1993 seeking recovery of an amount of Rs.  46,700/- being arrears due after the date of filing the petition,  being the arrears due from the Trial Court’s Order  (20th

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January, 1993) till the date of filing the I.A., i.e., 16th June, 1998.   After the filing of the said I.A., the respondent deposited an  amount of Rs. 5,365/- towards arrears due for a period of eight  months, i.e., from 20th January, 1993 to 31st August, 1993.  The  respondent-husband took the stand that no further amount was  payable as the I.A. filed on 1st July, 1998 was barred by limitation  under the first proviso to Section 125(3) Cr.P.C.   According to  the respondent,  the arrears of maintenance for the said period  of eight months only were recoverable under Section  125(3),  in  view of the Crl. Misc. Petition No. 476 of 1993 filed on 1.9. 1993   wherein the issuance of warrant was sought for recovery  of a  sum of Rs. 5,365/-  due for about eight months.  As already  noticed, the learned Magistrate dismissed I.A.1 of 1998 on the  ground of limitation.  However,  the learned Sessions Judge  having  held  that the bar of  limitation did not apply, remitted  the matter to the Trial Court for fresh disposal on a revision  filed in the High Court by the husband,  the present impugned  order was passed allowing the revision and restoring the order of  the Trial Court.         To appreciate the question whether the bar of limitation  under the proviso to Section 125(3) is attracted in the light of  the facts of the present   case,  a reference to the said provision  is necessary:         "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  (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:

         xx        xx       xx . "

It is true that the amount of  maintenance became   due by virtue of the Magistrate’s order passed on 20th January,  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  I.A. 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,  I.A. 1 was filed even when Crl. Misc. Petition 47 of 1993 was  pending and no action to issue warrant was taken in that  proceeding.  Crl.  Misc. Petition of 47 of 1993 which was filed  within  one year from the date the amount became due was kept  alive and it was pending althrough.     The purpose of filing I.A.  on  1st September, 1998 was only to mention the amount due  upto date.   The fact that the additional  amount was specified  in the I.A. 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 I.A. in 1998 was only to

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specify the exact amount which accrued due upto 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. 5,365/-   representing the arrears of eight months was mentioned therein  does not curtail the scope of Crl. Misc. Petition filed in 1993  more so when no action was taken thereon and it remained  pending. We are,  therefore, of the view that in the peculiar  circumstances of the case,  the bar under Section 125(3) cannot  be applied and the High Court has erred in reversing the order  of Sessions Judge.   It must be borne in mind that Section 125  Cr. P.C.   is a measure of social legislation and it has to be  construed liberally for the welfare and benefit of the wife and  daughter.    It is unreasonable to insist on filing successive  applications when the liability to  pay the maintenance as per the  order passed under Section 125(1)  is a continuing liability. For the above reasons,  we set aside the impugned  order of the High Court and restore the order passed by the  Additional District  Judge,  Tumkur in Crl. R.P. No. 194 of 2000.    The learned Magistrate shall take appropriate steps under  Section 125 (3)  in case the arrears of maintenance is not paid  within three months.