SHASHI KANT SHARMA,J. - (1.) THIS criminal revision petition filed by Surya Narain, petitioner husband is directed against the order dated 16/12/1998 passed by the learned Judge, Family Court, Ajmer whereby the learned Judge has ordered the petitioner husband to make payment of maintenance to respondent wife from May, 1997 to May, 1998. In this matter, notice was issued to the non-petition wife and Shri Resham Bhargava, advocate put in appearance on her behalf. Record from the court below was called for. Arguments of the learned counsel for the parties are heard and the entire record is examined.
(2.) IT is argued on behalf of the petitioner husband that the non-petitioner wife Mohini Devi delivered a child on 12th March, 1997, and, therefore, it is clear that the non-petitioner Mohini Devi lived with the petitioner husband. It is also argued that the petitioner husband is a poor person. The non- petitioner wife herself is guilty and she is harassing the petitioner. She is not even caring her child. It is then urged that the impugned order is passed on the basis of the application under Section 125(3) Cr.P.C. which was filed on 2nd June, 1998 and she could not claim maintenance for more than one year from that date. Therefore, the order passed by the learned Judge, Family Court for making payment of maintenance from May, 1997, is illegal and it should be set aside the order under challenge in the revision petition then the petitioner should give liberty to file an application before the learned court below for modification/cancellation of the original order of maintenance passed under Section 125 Cr.P.C. On behalf of the non-petitioner wife the learned counsel contended that the order of the learned Judge, Family Court is completely legal one. The court has passed an order maintenance from May, 1997 to May, 1998 and even if the non-petitioner wife has delivered a child on 12th March, 1997 even then there was no bar for granting maintenance from May, 1997. It is contended that the non-petitioner wife lived for some time with the petitioner-husband. It is contended that the learned court below has ordered to a child on 12th March, 1997, is immaterial. It is also argued that there is order of giving maintenance in the favour of the non-petitioner wife which was passed by the learned court below in the year 1986. Against which order, one revision petition was filed which was dismissed by the Additional Sessions Judge, Ajmer in the year 1998 and then the matter came to this Court and the matter was finally disposed of in April, 1990. Thus, it is contended that on the date when the non-petitioner wife filed an application for recovery of the maintenance under Section 125(3) Cr.P.C. The order of maintenance was already existing in her favour and the learned counsel below has only directed the petitioner husband for making payment of arrears from May, 1997 to May, 1998 for 12 month during that period, the order of maintenance was in existence and that order of maintenance is modified or cancelled and if the order of maintenance is still in existence, the wife non-petitioner is entitled to recover the amount of maintenance under that order.
(3.) BEFORE the dealing with the arguments of the parties, it is necessary to consider the relevant provision of Section 125(3) Cr.P.C. which empowers the court to order recovery of maintenance within one year from the date of with it become due, which runs as under :- "125(3). If any person so ordered fails 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 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 is sooner made; Provision that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court of levy such amount within a period of one year from the date on which it became due." ;