- (1.) Opposite party No. 1 obtained a decree of maintenance against the revisionist. He moved an application for the recovery of maintenance allowance of 16 months. The revisionist appeared there and filed an objection stating that the execution application has been filed for the recovery of maintenance allowance of 12 months could have been claimed. The executing Court issued warrant of attachment for the recovery of Rs. 480. The maintenance allowance was allowed at the rate of Rs. 40/- per month. For the remaining amount of Rs. 194.10 paise it did not issue warrant of attachment, instead issued the warrant of arrest on the ground that the husband can be sentenced to imprisonment for recovery of arrears which may extend beyond 12 months. Aggrieved by this order the husband has come to this Court.
(2.) I have heard learned Counsel for the parties and have perused the record. Sub-section (3) of Section 125, Code of Criminal Procedure lays down: If any person so ordered falls without sufficient cause to comply with the order, any such Magistrate may. for every breach of the order. Issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment If sooner made. A proviso has been added to this sub-section which is as follows: Provided that no warrant shall be Issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due. 2. From the above it is clear that the remedy of the wife for realising the maintenance allowance which have become 12 months old is barred under this provision. I do not think that the husband can be coerced to pay maintenance allowance which the wife is not entitled to get on account of her Inaction by taking recourse to his detention in prison. The Magistrate was therefore not justified in issuing warrant of arrest for the recovery of the maintenance allowance which had become barred by time.
(3.) The revision is partly allowed. The impugned order is so far it relates to Issue of warrant of arrest for the recovery of Rs. 194.10 paise is set aside.;