ATAULLAH Vs. MAIMUNNISA BEGUM

JUDGEMENT

(1.) The husband is the petitioner. The respondent wife and the minor daughter filed M.C.No. 95/79 in the court of the Additional Judicial First Class Magistrate, Adoni for maintenance. The Court ordered Rs. 100/- for the wife and 25/- for the minor. The husband carried the matter in revision and the same was dismissed by the second Additional Sessions Judge, Kurnool by his order dated 12-11-1982. Though the maintenance was ordered in the year 1979, the petitioner-husband failed to pay the maintenance and therefore the wife and the minor got an application filed under Sec. 125 (3) Cr.P.C. The learned First Class Magistrate by his order dated 26-3-1983 directed the petitioner to undergo sentence of imprisonment for 37 weeks, in default of payment of Rs. 4925/- towards the arrears of maintenance for 37 months. Again the same Magistrate by his order dated 28-3-1983. which was an application filed by the husband, suspended the order of arrest subject to the condition that the petitioner husband deposits an amount of Rs. 2500/- and executes a bond for a sum of Rs. 3000/-. Against the order directing the arrest, the present revision is filed. Crl.R.C.No.235 of 1983 dt. 28-11-1983,

(2.) The learned counsel submits that under Section 125 (3) Cr.P.C., the Court is not empowered to order arrest without issuing a warrant for levying the amount due as fine. According to the learned counsel, without issuing such a warrant, the Court cannot order for arrest. It is also his submission that as per the proviso to Section 125 (3) Cr.P C , evert such a warrant to levy the amount as fine can be issued on an application made to the court within a period of one year from the date on which it became due. In the instant case, according to the learned counsel, the application is filed only in the month of January, 1983 i.e., on 6-1-1983 beyond one year and therefore the order passed by the Court below is illegal. In support of his submission, the learned counsel relies on a Judgment of the Orissa High Court in Jagannath vs. Purnamashl. That was a case which arose under section 488 (3). Cr.P.C. The language of the said provision is the same as in section 125 (3) of the present Code. In that case the learned Judge observed that a warrant under that provision can be issued only within one year. It may not be necessary to consider the legal aspect at great length even assuming that what the Orissa High Court has laid down is correct. The petitioner husband against whom the order was passed in the yery 1979 preferred a revision to the Sessions Court and the learned Additional Sessions Judge, Kurnool dismissed the revision only on 12-11-1982. Therefore, the application filed under Section 125 (3) Cr.P.C , on 6-1-1983 is within one year. The matter became final only by virtue of the order passed by the learned Second Additional Sessions Judge on 12-11-1982. In this view of the matter, the application viz,, Cr.M.P.No. 91/83 in M.C.No. 95/79 on the file of the Additional First Class Magistrate, Adoni is within time. The learaed counsel, however, submits that in the absence of any stay nothing prevented the respondents from filing an application earlier. But for the purpose of limitation of one year, the Court can ignore the fact that the matter was pending by way of a revision and the order of maintenance became final only on the dismissal of the revision on 12-11-1982 by the learned Additional Sessions Judge.

(3.) The next submission of the learned counsel is that under Section 125 (3) in the first instance a warrant to levy the amount as fine should be issued and the sentence of imprisonment can be passed only if the amount remains unpaid after the execution of the warrant. Section 421 Cr.P.C., (1973) provides the procedure for issuing a warrant for levy of fine. In the instant case, no such warrant has been issued. But the order of the learned Magistrate shows that the husband who appeared in the Court in response to a notice issued in Cr.M.P.No. 91/83 admtted that the amount has not been paid and he had also no representation to make. Under these circumstances, no useful purpose would have been served by issuing warrant. In this view of the matter it cannot be said that the order of the lower court is illegal.