SHANTHA ALIAS USHADEVI Vs. B G SHIVANANJAPPA

JUDGEMENT

(1.) Leave granted.

(2.) 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 courts 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 courts 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, I.A.-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 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.

(3.) 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.