- (1.) HEARD learned counsel for the revisionist and learned A.G.A.
(2.) THE husband Manoj Kumar Gupta, who is revisionist, has filed this revision petition in this Court, impleading his wife Smt. Kamlesh Kumari as opposite party no. 1 and II Additional Chief Judicial Magistrate, Banda as opposite party no. 2, against the order dated 27.9.1993 passed by the II Additional Chief Judicial Magistrate, Banda in Case No. 243/IX/1990-Smt. Kamlesh Kumari Vs. Manoj Kumar Gupta, under Section 125(3) Cr.P.C., Police Station Kotwali Nagar, Banda, District Banda, by which recovery warrant for the interim maintenance amount remaining unpaid was directed to be issued against the husband and 16.10.1993 was fixed for further orders in the matter. It appears that the wife was awarded interim maintenance since 18.8.1989 at the rate of Rs. 400/- per month in the petition under Section 125 Cr.P.C. and the husband was directed to pay the amount of maintenance to his wife. The amount of maintenance became due from 18.8.1989 to 31.7.1992, hence the wife moved an application dated 31.7.1992 before the court below under Section 125(3) Cr.P.C. with the prayer that a recovery warrant for Rs. 14,195/- be issued against the husband. The husband filed objections on 23.9.1993 against the said application in the court below saying that the said application was not maintainable because the amount of maintenance only up to the period of one year could be recovered and recovery warrant could not be issued for recovery of maintenance for a period exceeding one year. The husband also took plea that his suit for decree of restitution of conjugal rights in the court at Amarawati, the State of Maharshtra, was decreed long back and by virtue of the said decree, the wife was directed to live with her husband and to perform conjugal rights and duties with her husband but the wife did not obey the decree without any sufficient reason and the wife had deserted him without any reasonable and sufficient cause. The husband inter-alia took the plea by way of filing objections that he ultimately filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 which was allowed by the competent court and the decree of divorce was passed on 17.6.1986 dissolving the marriage. On these grounds, the husband claimed that he was not liable to pay any interim maintenance to his wife as she had ceased to his wife. He had deposited Rs.4,800/- as interim maintenance for a period of one year and he prayed for cancelling the recovery warrant issued for recovery of remaining sum. The wife in the lower court moved another application stating therein that the objections by the husband on the wrong grounds were filed and the case of maintenance is still pending against the husband and the order dated 18.8.1989 awarding interim maintenance was in existence and is still in existence. The husband challenged the order of interim maintenance by way of filing Criminal Revision No. 121 of 1990 in the revisional court, which was also dismissed by the learned Sessions Judge, Banda vide judgment and order dated 23.5.1992. The husband in the court below clearly admitted that the Sessions Judge neither stayed the operation of the order by which interim maintenance was allowed to the wife nor the lower court proceedings were stayed. It is evident from the impugned order itself that the husband deposited a sum of Rs. 4,800/- which was due for a period of one year but he did not deposit the remaining unpaid amount of maintenance just on the ground that a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 by the court at Amarawati (Maharastra) was passed against his wife, which was not obeyed by the wife.
(3.) THE main submission of the learned counsel for the revisionist husband is that by virtue of provisions of Section 125(3) of Criminal Procedure Code, 1973 if the husband failed without sufficient cause to comply with the order of the maintenance, then the Magistrate may, for every breach of the order can issue a warrant for levying the amount due in the manner provided for levying fines and can sentence the husband for whole or any part of each month's allowance remaining unpaid after the execution of the warrant to imprisonment for a term which can extend to one month or until payment if sooner made. No warrant could be issued for recovery of the amount due unless the application was made to the court to levy such amount within a period of one year from the date on which it became due. On this ground, the impugned order is illegal, unjust, improper and against the provisions of law. Learned A.G.A. taking me through the impugned order and other material, has submitted that this is a case of awarding maintenance to the wife and the husband in part compliance of the impugned order, deposited only maintenance amount up to the period of one year. The order of interim maintenance was passed in the year 1989 and when the husband did not pay the same within reasonable time, then the wife had to move an application under Section 125(3) of the Criminal Procedure Code, 1973 with the prayer that the recovery warrant for recovery of the aforesaid amount for the aforesaid period against her husband be issued. It was after the impugned order dated 27.9.1993 that the husband made only part payment namely up to the period of one year to his wife. He did not pay the remaining amount of maintenance on the ground that a decree for restitution of conjugal rights was passed in his favour against his wife by the District Court, Amarawati, State of Maharashtra on 17.6.1986 and the wife did not comply with that decree. Learned A.G.A. has further submitted that since the order awarding interim maintenance to the wife and also the impugned order were in existence against the husband revisionist, he was bound to make payment of the whole amount of interim maintenance so as to prevent her from starvation but it was the husband revisionist who had driven his wife to the stage of starvation. This criminal revision was filed in this Court on 28.10.1993. This was presented before the Court and this Court on 3.11.1993 passed the following interim order:- "On steps issue notices to the respondent No. 1 to show-cause against the applicant. Summon the records of the courts below. In the meanwhile and till further orders operation of the impugned order dated 27.9.1993 shall remain stayed for a period of 20 days from today. If within this period the applicant deposits with the Court below a sum of Rs.5600/- and continues to deposit a sum of Rs. 400/- every month as directed in the basic order of the trial Court, the operation of the order shall remain stayed till the disposal of the stay application. In the event of failure, there shall be no stay order. 3.11.93. On the same day, the same Hon'ble Judge passed the following order:- After the above order, the learned counsel stated that he does not press his prayer for interim stay. The part of the order "In the meanwhile.........." shall be no stay order" and shall be deemed to have been deleted." Before coming to the point involved in this case, I think it proper to discuss the various case law on this point. ;