RANJEET KISHAN Vs. SUMITRA KISHAN

JUDGEMENT

(1.) This petition has been filed under Section 19(4) of the Family Court's Act, 1984 by the husband-Petitioner challenging the order dated 15.09.2008 passed in Criminal Proceeding No. 25 of 2008 by the Judge, Family Court, Rourkela. The opposite parties filed an application under Section 125, Code of Criminal Procedure for grant of maintenance from the Petitioner on the ground that the opposite party No. 1 and the Petitioner are co-villagers and developed an acquaintance with each other. In course of time, the Petitioner proposed to marry her and to create confidence in the mind of the opposite party No. 1 applied vermillion on her forehead and later declared that they are husband and wife. On such deceit, the opposite party No. 1 cohabitated with the Petitioner and when she conceived, the Petitioner attempted to force her to abort the pregnancy for which dissension arose between them. The Petitioner thereafter neglected the opposite party No. 1 for which she convened a village meeting. But as the same did not yield any result, she reported the matter before the LLC, Lahunipara Police Station on which the police did not take any action. Accordingly, she was compelled to file a private complaint, being I.C.C. Case No. 7 of 2000, under Sections 376/493/417, I.P.C. The said case ultimately ended in conviction on 07.04.2003 sentencing the Petitioner to undergo R.I. for five years and to pay a fine of Rs. 10,000/-, in default, to suffer R.I. for two years more. In due course the opposite party No. 1 gave birth to opposite party No. 2. As she had no means to maintain herself and the child, for which she filed the application under Section 125, Code of Criminal Procedure for grant of maintenance of Rs. 1,000/- per month for herself and Rs. 500/- per month for her child to be paid by the Petitioner.

(2.) The Petitioner filed his show cause denying the entire episode and disowned the parenthood of the opposite party No. 2. The learned Judge, Family Court, Rourkela registering the said proceeding under Section 125, Code of Criminal Procedure as Criminal Proceeding No. 10/2004 and after recording the evidence of both the parties passed a judgment on 18.04.2006 taking note of the fact that the Petitioner has filed an appeal against his conviction in the criminal case, which is pending and after analysing the evidence adduced, as a matter of fact, found the so-called marriage between the parties ought to be disbelieved and, therefore, the opposite party No. 1 cannot be held to be entitled to get maintenance from the Petitioner. The Judge, Family Court, however, held that the opposite party No. 2 was born through the Petitioner and the child being an illegitimate child is entitled to maintenance. In conclusion, the learned court below quantifying the maintenance to be paid directed that the Petitioner shall pay Rs. 250/- per month for maintenance of the opposite party No. 2 within 10th of each succeeding month to be effective from the date of the application, i.e., 17.03.2004. The arrear maintenance shall be paid within a month from the date of the order failing which the opposite party No. 1 (Petitioner No. 1 before the court below) is at liberty to realize the same through the process of law. The maintenance amount for the opposite party No. 2 shall be paid through the opposite party No. 1.

(3.) As the amount as directed was not paid by the Petitioner, the opposite parties filed the Criminal Proceeding No. 25 of 2008 before the Judge, Family Court, Rourkela under Section 128, Code of Criminal Procedure for enforcement of the order of maintenance. The Petitioner took a stand that the application filed under Section 128, Code of Criminal Procedure by the opposite parties on 14.05.2008 having been filed more than one year after the date when the maintenance became due, the application is not maintainable. The opposite party No. 1 took a stand that she being a poor, rustic, illiterate and distress woman was not aware of the legal provision as to limitation for which she could not file a petition within the time stipulated on behalf of her minor son aged only three years. The learned court below recorded that the judgment directing payment of maintenance was allowed on 18.04.2006, thus the claim for arrears should have been made by 17.04.2007 and the application under Section 128, Code of Criminal Procedure has been filed on 14.05.2008, i.e., beyond one year and one month after the due date. However, he held that the case is clearly an exception from a normal case as in the instant case the opposite party No. 2 is a minor child of only three years and therefore, he being a minor is under a legal disability as per Section 6 of the Indian Limitation Act, 1963, which provides that during legal disability limitation does not start to run in respect of any suit or petition for execution of a decree until such disability ceases. Section-8 of the Limitation Act gives further chance of three years of limitation after seizure of legal disability. The Court below, therefore, applying the said provisions to the facts of the present case held that the opposite party No. 2 is a minor and under a legal disability as per Section 6 of the Limitation Act. Limitation for filing a petition under Section 128, Code of Criminal Procedure for execution of the order of the maintenance shall not start until his legal disability ceases, i.e, until he attains the age of 18 years. Observing thus, the Court below repelled the objection raised by the Petitioner with regard to non-maintainability of the application filed under Section 128, Code of Criminal Procedure on the ground of limitation and allowed the application of the opposite parties directing the Petitioner to pay all the arrear maintenance dues, which was to be paid to the opposite party No. 2 within fifteen days from the date of the said order in one instalment failing which the opposite party No. 1 is at liberty to apply on behalf of her minor son to enforce such payment through the process of court.