DILSHAD Vs. STATE OF U P

JUDGEMENT

(1.) THIS application under S.482 CrPC has been filed by Dilshad husband of Smt. Hazara Begum wherein he has challenged the order of the learned Magistrate passed under S.125(3) CrPC directing issuance of recovery warrant against the applicant for Rs. 22,500/-.

(2.) THE brief facts giving rise to this application are that the opposite party No. 2 filed an application under S.125 Cr. P. C. on 20-5-1999 against the applicant claiming maintenance for herself and her two children. The applications was allowed by an ex parte order dated 27-7-2000 and total maintenance of Rs. 1500/- per month for three persons was awarded from the date of the application. The applicant did not pay any maintenance and then an application under S.125(3) CrPC was filed on 28-8-2000 and on that application recovery warrant was issued against the applicant for Rs. 22,500/-. Since the applicant did not pay the amount he was arrested and was sent to jail where he remained for one month. This amount referred to the period 20-5-1999 to 20-8-2004. The case remained pending and the opposite party No. 2 filed another application on 13-2-2004 claiming maintenance for the period 21-8-2000 to 20-1-2004 for 41 months for Rs. 61,500/- The applicant filed an objection on 21-7-2004 contending that the claim for Rs. 61,500/- was beyond time as the application was filed after one year of its becoming due, that in the earlier execution application he was sent to jail and that matter could not be reagitated and that he was willing to maintain his wife and children and to keep them with him. The learned Magistrate by the impugned order directed that the recovery warrant be issued against the applicant for the maintenance amount due for the period of fifteen months commencing from 20-5-1999 and ending on 20-8-2000 for Rs. 22,500/-. Against this order the applicant has come to this Court under S.482 Cr. P. C.

(3.) THE main contention of the learned counsel for the applicant is that the learned Magistrate directed for issuance of warrant without first deciding his objection filed under the proviso to S.125(3) CrPC. The second proviso to S.125(3) CrPC reads as under: