Lavkush @APPELLANT@Hash Rekha Bai

Members of the bar alongwith State counsel are not putting up their presence in the Court today.

As per the office report, notice has been served upon respondent Rekha Bai but none is present on her behalf.

Mr. Kailash Chand Kumbhkar uncle of petitioner Lavkush present in person.

Heard.

This revision petition has been preferred against the order dated 03.03.2018 whereby learned Sessions Judge, Karauli has sentenced the petitioner

under Section 125 Cr.P.C. for non payment of the maintenance allowance for a period of 23 months.

Mr. Kailash Chand Kumbhkar submits that this order passed by the learned Sessions Judge is contrary to the proviso to sub-Section (3) of Section 125

Cr.P.C. He submits that at the most within a period of one year the application for recovery of the amount due under Section 125 Cr.P.C. can be

moved, whereas in this matter this application has been moved beyond this prescribed period alleging the default in payment of maintenance allowance

for 23 months.

On perusal of the order dated 05.03.2018 it transpires that respondent Rekha Bai has moved an application for recovery of the amount of maintenance

allowance @ 3,000/- per month from 26.10.2015 to 26.09.2017, but this application was moved on 05.10.2017 which was placed before the Sessions

Judge on 07.10.2017 after the report being made from the office. This fact is apparent on perusal of the copy of the order dated 07.10.2017 and other

documents.

In this regard sub Section 3 of Section 125 Cr.P.C. is reproduced as follows:-

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 sentnece such person, for the whole, or any part 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 warrnat 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:

Proviso attached to sub Section (3) of Section 125 Cr.P.C. clearly shows that no warrant shall be issued for recovery of the maintenance allowance

unless application be made to the Court within a period of one year from the date on which it became due. In the case in hand, it appears that

application for recovery of the amount for the period commencing from 26.10.2015 was made on 05.10.2017, which is apparently beyond the period of

one year. Despite this learned Family Judge has ordered to impose punishment of sentence for the non payment of maintenance allowance for the

total period commencing from 26.10.2015 to 26.09.2017 and therefore sentence for a period of 460 days has been imposed on the petitioner.

This order is in clear violation of the proviso to sub Section 3 of Section 125 Cr.P.C. as stated above.

In view of above the order dated 05.03.2018 is quashed and set aside while allowing revision petition preferred against the said order. Petitioner will

be set at liberty, if still undergoing the sentence vide order dated 05.03.2018.

However, it is made clear that the respondent shall be at liberty to move the application for recovery of the amount due towards maintenance

allowance within the period prescribed as per the above stated provisions of law.

The petition stands disposed off.