Hori Lal vs Sita

G.S. Chahal. J.

Hori Lal petitioner by means of this criminal miscellaneous seeks the quashing of the order dated 41189, Annexure P. 1, passed by the Addl. Chief Judicial Magistrate, Ferozepur and order dated 1171990, Annexure P2, passed by the Addl. Sessions Judge.

The facts are not disputed and may be briefly enumerated.

Smt. Sita respondent for herself and her minor children brought an application under Sec. 125 of the Code of Criminal Procedure on 151186. On 13887 the Addl. Chief Judicial Magistrate passed an order granting interim maintenance of Rs. 300/ per mensem in favour of the respondent and her children. This order was challenged in revision by the petitioner, but having failed, he abandoned the proceedings and failed to pay the interim maintenance. His defence was struck off. Vide order dated 21588 application under Sec. 125, Cr.P.C. was allowed and the maintenance was finally fixed at Rs. 300/ p.m. On 27788 the respondent moved an application for recovery of the amount of maintenance which had become due. That was claimed with effect from 151186 and salary of the petitioner having been attached, recovery of Rs. 5,700/ works cut as the maintenance for 19 months was made from his pay and paid to the respondent. The petitioner filed objections to the allowing of this maintenance which were, however, rejected by the learned Magistrate and on revision, that order of the Magistrate was maintained.

The main argument of the learned counsel for the petitioner is that under the provisions of section 125(3), Cr P.C. the respondent could not have claimed maintenance for more than a year. Thus, his objections should have been allowed.

On the date of the passing of the final order by the Magistrate, the maintenance had been allowed without a reference to the date from which the same was payable. This would, thus, mean that the order was effective from the date of the order itself. If the learned Addl. Chief Judicial Magistrate had desired to grant maintenance from the date of the application, he would have specified it. On the date of the execution application, only maintenance for two months had accrued to the petitioner. She had however, the right to recover maintenance granted to her pending the proceedings. This was the period from 13887 to 28588. The learned counsel for the respondent has not been able to show that the interim maintenance was payable from any earlier date. The interim maintenance is granted by the Court of the Magistrate while exercising inherent powers. The grant of this interim maintenance is not controlled by the provisions of section 125, Cr. P.C. By the same analogy, the provision of limitation will not apply to the enforcement of this order passed by the Magistrate, while exercising inherent powers. This maintenance shall remain alive till realised. At any rate, the application for recovery of this amount had also been brought within a period of one year of the date of that order. No illegality was, thus, committed by the Courts below in ordering the recovery of the amount.

There has, however, been excess payment, as a total sum of Rs. 5,700/ was recovered though this amount was not due on the date of recovery. The excess amount shall be adjusted towards the maintenance which became due subsequent to that date. When so calculated, the maintenance upto 1231989 shall be deemed to have been paid. A clarification to that effect will help in solving the dispute between the parties. Beyond 12389, the respondent will be entitled to recover the maintenance as ordered by the Court of the Addl. Chief Judicial Magistrate. With this clarification, the Criminal Misc. is dismissed.