P.N.Goel - (1.) THIS is an application u/Sec. 482 CrPC.
(2.) SMT. Shyam Kumari opposite party No. 3 is the wife of Phullu applicant. She filed an application u/Sec. 488 of the old Code of Criminal Procedure. By order dated 29?12?1964 the Magistrate fixed her maintenance allowance at Rs. 30/- p.m. On 14?9?1965 she moved an application for realisation of the arrears of maintenance allowance. In this proceeding some property was attached. One Ram Bilas filed an objection that the attached property belonged to him. On 19?8?1975 his objection was allowed and the attached property was released in his favour. SMT. Shyam Kumari filed a revision before the Sessions Judge. On 14?1? 1976 her revision was dismissed. On 3?4?1974 Smt. Shyam Kumari moved an application for realisation of entire arrears due from 29? 12?1964. The Magistrate passed an order on 17?11?1976 that Phullu should pay the entire amount i.e. Rs. 3,960/-. Against this order Phullu filed a revision before the Sessions Judge. By order dated 13?4?1977 the Vth Additional District and Sessions Judge, Budaun rejected the revision. No counter affidavit has been filed. The opposite party has not put in appearance. The learned counsel for the applicant contended that the claim of Smt. Shyam Kumari was barred by time. Second proviso to Section 488 (3) CrPC and first proviso to Section 125 (3) of the new Code of Criminal Procedure lay down the same provision. The proviso reads : "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."
(3.) IT will be seen from old Sec. 488 CrPC as well as new Sec. 125 CrPC that the Magistrate passes an order for payment of the monthly allowances: Therefore, the husband has to comply with the order, himself. When he fails to comply with the order, the wife is required to make an application for the realisation of the amount. Second proviso to Sec. 488 CrPC (3) was considered in the case of Deva Nigam v. Smt. Savitri Devi, 1974 ALJ 549: In this case Smt. Savitri Devi used to make an application for the realisation of the arrears of maintenance almost over six months or so. Therefore, her last application dated 26-2-1969 for the entire arrears was held within time and the reference made by the Civil & Sessions Judge that Smt. Savitri Devi could get only one year's arrears was rejected. In this case it was held that the period of limitation was one year and the Court could not extend the period of limitation. It means that the wife should make an application after one year's arrear have fallen due. 6. In this view of the matter, there; is force in the contention of the applicant's 'counsel that the arrears of about nine years cannot be claimed by moving an application on 3-4-1974 because Smt. Shyam Kumari had moved no application within one year of her first, application dated 14-9-1975.;