PRITHVIRAJ SINGH Vs. PAVANVIR KAUR

JUDGEMENT

(1.) The question presently requiring determination is whether, by reason of death of the husband, the claim of the wife to arrears of maintenance is any more enforceable. This question crops up on the facts mentioned hereafter.

(2.) Pavanvir Kaur, the respondent (hereinafter referred to as the wife) filed an application under S. 125 of the Cr. P.C. on 5-2-1979 against her husband Major Joginder Pal Singh (hereinafter referred to as the husband), before the Judicial Magistrate, Ist Class, Chandigarh, claiming Rs. 500/- per mensem as maintenance. The maintenance as claimed was allowed on 10-8-1982 with effect from 5-2-1979 by the Court. On 10-2-1983, she filed an application under S. 125(3) read with S. 128 of the Cr. P.C. before the same Court for the recovery of Rs. 24,000/- as maintenance allowance for the period 5-2-1979 till 4-2-1983. A suitable warrant of attachment was issued against the property of the husband as also the conditional warrant of arrears by means of detention of the husband in prison. During that period on 29-5-1983, the husband died. As it seems, beforehand, the husband had executed a will on 20-8-1981 and presented it on 16-9-1981 before the Sub-Registrar, Kanpur, bequeathing, after his death, of his property, moveable and immoveable, to his nephew Prithviraj Singh, minor son of Surendra Pal Singh, resident of 3/106, Vishnu Puri, Kanpur, the petitioner. The will was registered in the books of the Registrar on 25-9-1981. As willed therein, one R. K. Lal Advocate was appointed the Executor of the will, vide order dt. 26-5-1984 of the IV Additional District Judge, Kanpur.

(3.) Becoming aware of the recovery process against the deceased and his property, the petitioner approached the criminal Court at Chandigarh, apprising it that since the husband had died, and since under the registered will, afore referred to, he had become the sole owner of the moveable and immoveable properties of the deceased husband, the process of recovery of arrears of maintenance and the sought-after attachment of properties had become invalid and, accordingly prayed for the withdrawal of the warrants. The learned Magistrate acceded to the prayer, called back the warrants of attachment arid dismissed the application of the wife for recovery of maintenance. She preferred a revision petition before the Court of Session. The Additional Sessions Judge, Chandigarh, took the view that the amount of maintenance allowance for the period for which the husband was alive, could be realised by the wife as provided under S. 421(1)(b) of the Cr. P.C. and, thus, he restored the application of wife, directing the Magistrate to issue a warrant as provided under the aforesaid provisions for realisation of maintenance allowance for the period for which the husband was alive. It is this view of the learned Additional Sessions Judge which is the subject-matter of challenge in this petition, be it termed a revision under S. 397 or a miscellaneous application under S. 482 of the Cr. P.C.