A.S. PRAVEEN KUMAR Vs. ASHWINI

JUDGEMENT

(1.) Petitioner is the husband and respondent is the legally wedded wife of the petitioner. On the ground that she and her three year's child has been deserted, neglected and refused to maintain by the petitioner without any lawful excuse, she field a petition under Sec. 125 Cr.P.C. claiming maintenance from the respondent in Crl.Misc.No.126/2007 on the file of Addl. Civil Judge and JMFC, Udupi. The petition came to be partly allowed granting maintenance at the rate of Rs.5,000.00 each per month from the date of the petition. The petitioner failed to pay maintenance as ordered by the Magistrate. As such, the respondent wife filed a petition under Sec. 125(3) Cr.P.C. for recovery of arrears of maintenance for the period running from 18/1/2007 to 17/9/2013(80 months) in Crl.Misc.359/2013 amounting to Rs.6,80,000.00. Upon receipt of notice, the petitioner appeared and filed his objections dtd. 16/7/2015 contending therein that the claim for arrears of maintenance for a period of more than 12 months is barred by limitation. The learned Magistrate without consideration of the objections filed by the petitioner as to the limitation, issued fine levy warrant against the petitioner. Aggrieved by the order as to the issue of fine levy warrant(FLW), this petition is filed to quash the order.

(2.) The submission of the learned counsel for the petitioner is under Sec. 125(3) Cr.P.C., the limitation to file a petition for recovery of arrears of maintenance is 12 months and that the arrears of maintenance beyond of period of 12 months is barred by limitation and as such the Magistrate has no power to issue FLW for recovery of arrears of maintenance beyond the period of one year. There is an element of truth in the submission made by learned counsel for the petitioner. The limitation for recovery of arrears of maintenance is one year, unless the respondent wife was prevented from filing petition for recovery of arrears of maintenance by virtue of the stay order passed by the Appellate Court or Revisional Court. If there was no stay order, the petition for recovery of maintenance is to be filed for recovery of maintenance for a period of one year. As such, the petition filed by the petitioner for recovery of arrears of maintenance for period of 80 months is not maintainable. Hence, the order as to the issuance of fine levy warrant for recovery of arrears of maintenance for a period of 80 months is liable to be quashed. If at all the respondent-wife is entitled to recover maintenance in Crl.Misc.359/2013 for the period of 12 months running from 26/9/2012 to 26/9/2013 the date of filing of the petition. The arrears of maintenance for the period earlier to 26/9/2012 claimed in Crl.Misc.359/2013 is barred by time, inasmuch as, it cannot be recovered under Sec. 125(3) of Cr.P.C.

(3.) Accordingly, the petition filed by the petitioner- husband is allowed. The order of issuance of fine levy warrant to the petitioner in Crl Misc.No.359/2013 on the file of Addl. Civil Judge and JMFC, Udupi is set-aside. The learned Magistrate is directed to consider the statement of objections dtd. 16/7/2015 filed by the respondent and dispose of the main petition in the light of the observation made by this Court during the course of its order. In view of disposal of the main matter, I.A.1/15 for stay does not survive for consideration.