SK ABUBAKKAR Vs. MST OHIDUNNESSA BIBI

JUDGEMENT

(1.) THIS criminal revision has been filed under Section 484 and Section 401 of the Code of Criminal Procedure for quashing the execution case No. 7 of 1987 (arising out of Misc. Case No. 64 of 1982) pending in the Court of the learned Judicial Magistrate, 2nd Court, Arambagh in the district of Hooghly. The opposite party herein filed an application under Section 125, Cr.P.C. against the petitioner herein on 12th October, 1982 claiming maintenance for herself and her child. The petitioner and the opposite party are both Muslim by religion and they were married in the year 1964. That marriage was however dissolved by a Talaknama executed on 10th November, 1969. In the meantime however a child was born to them in April, 1969. The application for maintenance filed under Section 125, Cr.P.C. was allowed by the learned Magistrate on 30th September, 1983 and the learned Magistrate granted maintenance at the rate of Rs. 100/ - per month for the wife and Rs. 50/ - per month for the child with effect from 1st September, 1983. The said maintenance order was put to execution by the divorced wife in the impugned execution case No. 7 of 1987 which was stated on 9th March, 1987. Distraint warrant was issued in that execution case against the petitioner herein and subsequently he was arrested on the strength of a warrant of arrest issued against him in the said execution case. However, he was released on bail on condition of making payment of the arrears maintenance. The petitioner has now come up before this Court for quashing the said execution proceeding, mainly on two grounds, namely (1) that with the advent of the Muslim Women (Protection of Rights of Divorce) Act, 1986 (Act 25 of 1986) - which came into for on 19th May, 1986 - a divorced Muslim women is not entitled to any maintenance from her former husband with effect from the said date, and (2) that the impugned execution proceeding is barred by limitation. It is also the case of the petitioner herein that after his arrest and during the pendency of the impugned execution proceeding he has already paid in instalments a sum of Rs. 4,990/ - towards the maintenance. It was also canvassed on behalf of the petitioner herein as the third ground in assailing the execution proceeding that the warrant of arrest was issued against him without waiting for the execution report of the distraint warrant.

(2.) TAKING the last ground first, it appears from the certified copy of the order -sheets of the impugned execution case that there was order on 20th February, 1988 for issuing distraint warrant against the petitioner herein but as that was not issued for some reason, there was a fresh order on 3rd January, 1990 for issuing distraint warrant fixing 17th February, 1990 for E.R. (Executive Report). No execution report was, however returned. The learned Magistrate issued warrant of arrest against the present -petitioner by his order dated 10th August, 1990 when no E.R. of the distraint warrant was yet received. In this connection, we may refer to sub -section (3) of Section 125, Cr.P.C. which provides that if any person fails without sufficient cause to comply with the order of maintenance the 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. It is, therefore, evident that warrant of arrest, obviously for the purpose of effecting imprisonment of the person liable to pay maintenance should not be issued unless the whole or any part of the maintenance due remained unpaid after the execution of the distraint warrant. Therefore the warrant of arrest should not be issued before receiving the execution return of the distraint warrant and before ascertaining therefrom whether the whole of the maintenance recoverable or any part thereof has yet remained unpaid after the execution of such distraint warrant. The Magistrate should not issue warrant of arrest before return and consideration of the execution report of the distraint warrant. That question is however only of academic interest in the case now inasmuch as the petitioner herein is no more in custody and all so because any irregularity in the matter of issuing warrant of arrest will not vitiate the entire execution proceeding.

(3.) THE question of limitation as raised by the petitioner herein is also not wholly without substance. The first proviso to sub -section (3) of Section 115 provides that no warrant shall be issued for the recovery of any amount due under Section 125 unless the application be made to the Court to levy such amount within the period of one year from the date on which it became due. There is no doubt that the said proviso does not wash away the liability to pay arrear maintenance which has become due under the order passed by the learned Magistrate. The proviso only puts a bar against recovery of such amount by issuing warrant for recovery of the amount for the past period beyond one year from the date on which the application was made for levying the same in that manner. In the present case since the application for execution of the maintenance order in the manner provided in Section 125, Cr.P.C. was filed about three and half years after the passing of the maintenance order, clearly the arrear amount for the entire back period was not recoverable by issuing warrant or levying the amount by distraint warrant and any distraint warrant could not have been issued for recovery of maintenance for any past period beyond one year from date of the application for realization of the same in that manner. It has been argued by Mr. Habibullah appearing for the opposite party herein that the entire amount for the whole of the back period became due when the execution was filed and, therefore there was no question of the application for execution being barred by limitation. This argument of Mr. Habibullah, I must say, is not tenable. Under a maintenance order when any one is directed to pay maintenance at a certain rate per month the maintenance amount for every month, unless otherwise directed, becomes payable in that month, but if not paid during the month it becomes recoverable on the expiry of the month and, therefore the application for recovery of the same will have to be made within one year from the expiry of that month, except, of course where any maintenance for any back period becomes payable by virtue of any subsequent order of Court in which case the arrears becomes payable on the date of the order of the Court or on such future date, if any, as may be fixed by the Court for payment.