Limitation to arrest for NON payment of maintenance under sec 125 CRPC 

Limitation for recovery of arrears under sec 125 CRPC In this classic case, the honourable madras High Court, clearly distinguishes between the powers of the court to imprison the husband for non-payment of maintenance – Sec 125(3) , versus simple recovery of her years maintenance, under section 128 of criminal procedure code

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.02.2010

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

Criminal Revision Case No.1237 of 2009
and
M.P.No.1 of 2009

P.Vaithi .. Petitioner
Vs.

  1. Kanagavalli
2. Tamil Selvai .. Respondents
    • *
Prayer : Criminal Revision Case is filed under Section 397 read with 401 of Cr.P.C. to set aside the order of the learned Judge of the Family Court, Salem, made in C.M.P.No.146/2008 in M.C.No.29/2004 dated 22.10.2009
For Petitioner :: Mr.S.Ayyathurai
For Respondents :: Mr.R.Nalliyappan

O R D E R

In M.C.No.29/2004, the Family Court, Salem, directed the petitioner to pay a sum of Rs.750/- p.m. to the 1st respondent and Rs.500/- p.m. to the 2nd respondent towards their maintenance under Section 125 of Cr.P.C. The said order, dated 17.11.2006 has become final. However, the said amount was not paid. Seeking to enforce the same, the respondents filed C.M.P.No.146/2008 before the lower court under Section 128 of Cr.P.C. By an order dated 22.10.2009, the Family Court directed the petitioner to pay the amount and also cautioned the petitioner that an order of attachment would be passed in the event of failure of the petitioner to pay the amount. The petitioner is aggrieved by the said order. Thus, he is before this Court with this revision.

  1. The only contention raised by the learned Counsel for the petitioner is that such a petition for enforcement could be filed only in respect of arrears of maintenance for a period of one year. He would further submit that since, in this case, C.M.P.No.146/2008 was filed covering a period exceeding one year, the court ought to have dismissed the application as barred by limitation. To substantiate his contention, the learned counsel relies on judgments in Yoosuf Rawther v. Ashref and another reported in 1997 Crl.L.J.4313 and Jagannath Patra v. Purnamashi Saraf and another reported in AIR 1968 Orissa 35.
  2. The learned Counsel for the respondents would however oppose this petition. According to him, the limitation provided under Section 125 (3) is not applicable to the facts of the present case.

  3. I have considered the rival submissions made on either side and also perused the records.

  4. At the outset, I have to state that a proceeding under Section 125 Cr.P.C. is quasi civil and quasi criminal. In so far as it decides the civil rights of the parties to claim maintenance, it is civil in nature. When the order is not obeyed by the person against whom the same has been made, then the court is empowered to impose a punishment of imprisonment of one month for each breach. To that extent, the proceeding is criminal. To put it comprehensively, I have to state that the proceeding is quasi civil and quasi criminal.

  5. After an order is passed directing to pay maintenance, the party in whose favour such an order has been passed has got two options to work out to recover the arrears from the other. He can choose to approach the court under Section 125(3) Cr.P.C. requesting the court to punish the defaulter by imposing appropriate imprisonment. On the other hand, he can also approach the court under Section 128 of Cr.P.C. seeking to recover the amount due under the maintenance order. A comparison of Sections 125(3) and 128 of Cr.P.C. would keep things beyond any pale of doubt that in so far as the proceeding under Section 125(3) is concerned, the statuete has prescribed a period of limitation of one year, whereas in respect of a proceeding under Section 128 of Cr.P.C., there is no limitation provided at all. This is because, while exercising the power under Section 125(3) Cr.P.C. the action being essentially a criminal in nature, resulting in punishment of imprisonment, the legislature has perhaps, thought it fit to provide such a period of limitation of one year to file a petition. Since, while enforcing an order under Section 128 of Cr.P.C. for recovery of the amount, there is no question of straight away imposing such a punishment of imprisonment and that may be the reason for the legislature not to provide for such a period of limitation. Therefore, to put it in nutshell, for initiating a proceeding for enforcing an order by invoking Section 128 of Cr.P.C., absolutely, I find no provision providing for limitation as it is provided in respect of proceedings under Section 125(3) of Cr.P.C. In the case on hand, the petition was filed under Section 128 of Cr.P.C. Though it was filed beyond one year, in my considered opinion, the lower court was right in entertaining the same as the same is not barred by any limitation.

  6. Now the judgment relied on by the learned counsel for the petitioner in Yoosuf Rawther v. Ashref and another reported in 1997 Crl.L.J.4313 as cited supra requires to be considered. In that judgment, the Court had occasion to consider the period of limitation provided only in respect of a petition filed under Section 125(3) of Cr.P.C. The Court was not inclined to give any findings in respect of the proceedings under Section 128 Cr.P.C. Therefore, the views expressed in the said judgment have no relevance to the Section 128 of Cr.P.C. at all. For similar reason, the judgment inf Jagannath Patra v. Purnamashi Saraf and another reported in AIR 1968 Orissa 35 also does not come to the help of the petitioner.
8. In view of all the above, the revision fails and the same is accordingly dismissed. Consequently, connected Miscellaneous Petition is also closed. I clarify that the petitioner is at liberty to enforce the maintenance order without being bound by the limitation provided under Section 125(3) of Cr.P.C.
    02.02.2010 

Index : Yes/No 

Internet:Yes/No 
 To The Family Court Judge, Salem.

S.NAGAMUTHU,J.
tsi 
Crl.R.C. No.1237/2009 02.02.2010 

Crl.R.C.No.53 of 2010 Dt.19.01.2010 01.02.2007

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