IFTEKHAR HUSAIN Vs. HAMEEDA BEGUM

JUDGEMENT

(1.) On 31-1-1978, the Magistrate passed an order under Section 125 Cr.P.C. by which he awarded Rs. 75/-per month as maintenance allowance to the opposite party and her daughter. Aggrieved thereby a revision was filed which was dismissed on 8-7-1978. On 9th May, 1979 an application was filed on behalf of Smt. Hameeda Besrum claiming maintenance allowance of Rs. 3375.00 from 1-8-1975 to 1-5-1979. It was prayed that the amount be realized by attachment. It appears that the property of the applicant was attached. The value of the property according to the report received by the court below was Rs. 33200. He directed the sale of the property. But since the total amount of maintenance to be realized was Rs. 3525.00, the Chief Judicial Magistrate Shajahanpur directed the issue of warrant for the arrest of the applicant. He passed an order under Section 125(3) Cr.P.C, for the arrest of the applicant for 45 months or till such time as the payment was made. This order was passed on 31-7-79. Aggrieved thereby a revision was filed before the Sessions Judge, Shajahanpur, which was dismissed on 1-4-80. Hence this application under Section 482 Cr.P.C.

(2.) I have heard learned Counsel for the parties at a considerable length and have also perused the impugned order-Section 125(3) Cr.P.C, runs 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 sentence such person for the whole or any part of each month's allowance 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

(3.) A plain reading of this section indicates that two alternatives have been provided therein for the recovery of arrears of maintenance. The first is by the issue of warrant for realisation of the amount due in the manner prescribed for levying the fine. The second is by sending the defaulter to prison for one month for each month's allowance remaining unpaid. The proviso to Sub-section (3) of Section 125 Cr.P.C. places a restriction upon the issue of warrant for the recovery of any amount due and that restriction is that the application should be made to the Court within a period of one year from the date it becomes due.