SABITA KUMARI NAYAK Vs. SATRUGHAN NAYAK

JUDGEMENT

(1.) Scope and ambit of Section 125 (3) of the Code of Criminal Procedure, 1973 (in short, the 'Code') is the subject-matter of this writ application.

(2.) Background facts leading to filing of this application are undisputed. Petitioner No. 1 Sabita Kumari Nayak is the wife of opposite party No. 1 Satrughana Nayak, while petitioners 2 to 4 are their minor children. A case under Section 135 of the Code was filed by Sabita claiming maintenance for herself and on behalf of her minor children on 21-7-1982 before the learned SDJM, Kendrapara. On 10-4-1984, the learned SDJM disposed of the case granting maintenance of Rs. 400/- per month being payable by opposite party No. 1 from the date of application, i.e., 21-7-1982. As there was no payment and directions of the Court were not complied with, an application for realisation of arrear as well as for future maintenance by way of attachment of opposite party No. 1's salary was filed and the said application was registered asCriminal Misc. Case No. 6 of 1985. In the said application petitioner No. 1 had prayed for realisation of maintenance dues for 31 months. Opposite party No. 1 appeared before the learned SDJM and took several adjournments for payment of maintenance to the petitioner, but did not make any payment. It is to be noted that after establishment of Family Court at Cuttack the case which was pending before the learned SDJM was transferred to the Court of Judge, Family Court and was re-numbered as Criminal Proceeding No. 192 of 1991. During pendency ofCriminal Misc. Case No. 6 of 1985 before the learned SDJM, petitioner filed another application for dispensing with NBW for default in making payment of arrear maintenance. The learned SDJM directed issuance of NBW. Details of the arrears were submitted by the petitioner with prayer for realisation through attachment and sale of property. Attachment order was issued to the employer of opposite party No. 1 by learned Judge, Family Court by order dated 11-10-1991. Considering the applications filed by order dated 9-1-1991 direction was given for attachment of the salary by issuance of attachment warrant. It was stipulated that the arrears related to the periods from 21-7-1982 to 15-2-1985, and from 16-2-1985 to 15-11-1989. On 11-10-1991, petitioner No. 1 presented a petition before the learned Judge, Family Court, for issuance of attachment order against the salary of opposite party No. 1 for realisation of arrear maintenance. An order of attachment was issued attaching the salary of opposite party No. 1 to the extent of Rs. 600/- per month towards arrear maintenance. On 4-9-1992 opposite party No. 1 filed an application stating that two separate cases were to be registered in terms of Section 125 (3) of the Act on the petitions dated 8-12-1991 and 10-3-1991. It was further submitted that the applications are barred by limitation. By order dated 6-5-1993, the learned Judge, Family Court directed his office to register two separate proceedings in view of the petitions filed by the petitioner and taking into consideration the objection filed by opposite party No. 1. Two criminal proceedings were registered, and they were numbered as Criminal Proceedings Nos. 174 of 1993 and 175 of 1993.On 6-7-1993 petitioner No. 1 filed an application praying for condonation of delay in filing the two petitions, and to tag the two criminal proceedings registered with the original file. Considering the circumstances under which the applications were filed and highlighting conduct of opp. party No. 1 throughout the proceedings the said petition of the petitioner was rejected by the learned Judge, Family Court.

(3.) Petitioners' stand in essence is that the original application was filed in time. Opposite party No. 1 did not prefer to make any payment and required the petitioner No. 1 to go on filing applications which led to multiplicity of proceedings and that is not the intent and purpose of Section 325 (3). The learned Judge, Family Court while passing order for starting two separate cases has overlooked the fact that the petitioner No. 1 has prayed throughout for attachment of salary of opposite party No. 1 for realisation of past and current maintenance. According to the petitioners, the view of the learned Judge, Family Court is untenable in view of first proviso to sub-section (3) of Section 125 of the Code. The learned counsel for opp. party No. 1 submitted that the first proviso to sub-section (3) of Section 125 of the Code is clear and categorical, and it puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the Court within a period of one year from the date of which it became due.