RANGAIAH Vs. RUKMINI BAI

JUDGEMENT

(1.) In this reference made bv the Chief City Magistrate, Hyderabad under Section 438 Cr. P. C. several contentions regarding the enforcibility of an order of maintenance passed under Section 488 Cr. P. C. have been raised. M.C.No. 12/66 on the file of the III City Magistrate, Hyderabad was a petition filed on 5-5-1966 by the wife on her behalf and on behalf of her minor daughter claiming maintenance from her husband under Section 488 (1) Cr. P. C. An order was passed on 30-11-1968 directing the respondent husband to pay a sum of Rs. 20/- to the wife and Rs. 10/- to the daughter per month towards their maintenance from the date of the petition. On 20-2-1969 a petition under Section 485 (3) was filed for the recovery of arrears from the date of petition 5-5-66 upto 5-3-69 by issue of an arrest warrant, as no amount was paid since the date of the order. A counter was filed by the husband contending that arrears for a period of more than one year are not recoverable as the rest of the claim is barred by limitation, that the Magistrate has no jurisdiction to issue a warrant of arrest for the recovery of an amount, without an application for recovery, that the petitioners are earning their livelihood that the 2nd petitioner has also attained her puberty, that therefore they are not entitled to claim maintenance, that he is also prepared to maintain them if they come and live with him and a fresh enquiry may be held regarding these objections before the enforcement of the order of maintenance. All these objections were over-ruled by the Magistrate and the petition was allowed and an Arrest warrant was directed to be issued.

(2.) On a petition to revise that order being filed before the Chief City Magistrate, he upheld the order of the lower Court, except with regard to the offer made by the respondent to maintain his wife and daughter if they come and live with him. He held that the order of the Magistrate issuing a warrant after refusing to enquire into the matter whether the offer made is bonafide or not, is illegal and has recommended to this Court that the order of the Magistrate be quashed and he may be directed to enquire into the question and dispose of the petition according to law.

(3.) In this reference, both the counsel for the petitioners and the respondent have again urged all the contentions raised before the Chief City Magistrate. The first contention of the respondent husband is that the petitioners are not entitled to claim arrears of maintenance for more than one year, as the rest of the claim is barred by limitation. This contention is not correct. The second proviso to Section 488 (3) Cr. P. C. stipulates that no warrant shall be issued for the recovery of any amount due unless an application be made to the Court to levy such amount within a period of one year from the date on which it became due. The limitation of one year prescribed is in relation to the date on which the amount falls due. Under Section 488 (2) Cr. P. C. any amount directed to be paid by the Magistrate may be made payable either from the date of the order or from the date of the application for maintenance. The option is therefore left to the enquiring court as to from which of the two dates the maintenance should be directed to be paid. In this case, the order was that the maintenance fixed should be payable from the date of application, i. e 5-5-66. As the final order was passed on 30-11-1968, arrears from 5-5-66 to 30-11-1468 became due only on the date of the order. Any petition for recovery of the amount can be filed within one year from the date of the order on which date the arrears became due. As the petition for recovery has been filed on 20-2-1969 after a lapse of only 82 days from the date of the order it is very much within the period of limitation prescribed.