SINGHAL, J. - (1.) THE following question has been referred by the learned Single Judge in view of the contrary decisions of this court. "whether first proviso to sub-section (3) of Section 125, Cr. P. C. is not mandatory in nature and this court is empowered to issue warrant for recovery of un-paid amount of arrears of maintenance even though it is beyond one year from the date on which it became due".
(2.) IN the case of Purshottam Das Vanjani V. Aasha Rani (1), it was held that- "the maintenance amount is always granted when the relations between wife and husband become strained and when they live separately or when the divorce is effected. The lady who always remains at the mercy of the husband and who is turned out, she has no source of income to maintain her, and even to approach the court regularly. The husband who is always at the better position and who can exert influence, wants to harass the lady. It does not matter whether the non-petitioner requiests the court in time or after the period of limitation. A moral duty is enjoined on the husband, and without taking shelter of the technicalities of the law and the provisions of Sections 125 (3) Cr. P. C. he should have paid this amount". The same view was taken in the case of Sukhdeo Singh vs. State of Rajasthan On the other hand in the case of Ganga Ram V. Smt. Jakali and other (3), it was held that the sourt is not empowered to issue warrant for recovery of arrears of maintenance beyond one year. In that case the order of the trial court granting arrears of maintenance for more than one year was held to be abuse of process of the court and was quashed. The provisions of Sec. 125 (3) Cr. P. C. are reproduced here which read 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 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: 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: Provided further that if such person offers to maintain his wife on condition of her living; with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that thereis just ground for so doing. Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him". In the present matter the criminal revision petition was filed by the petitioner Smt. Vimla Wife of Shiv Bhagwan against the order dated October 7, 1992 passed by the learned Sessions Judge in Cr. Revision Petition No. 81/1991 setting aside the order dated September 5, 1991 by which the Addl. Munsif and Judicial Magistrate Sikar directed the maintenance amount be paid to the petitioner even for the period which was more than one year earlier. The petitioner was granted the maintenance amount of Rs. 450/- vide order dated August 17, 1983 which was reduced to Rs. 400/- vide order dated November 29, 1985. The Addl. Munsif and Judicial Magistrate directed that the maintenance for the period from August 17, 1985 to April 16, 1991 i. e. 92 months to the extent of Rs. 36, 800/- be collected through warrant. The respondent was arrested on September 5, 1991 for not paying the amount from August 1990 to 1991 i. e. for one year. The respondent was sentenced to six months' imprisonment. Beside this, a direction was given to make the payment of the maintenance amount for the period prior to August, 1990. The payment of one year's amount has already been made. Now the dispute remains in respect of the period which was beyond one year. We have considered the arguments of the learned counsel for the petitioner. Section 125 Cr. P. C. contemplates maintenance to the wife, child, father or mother in accordance with various contingencies mentioned in the said section. Section 126 Cr. P. C. prescribes the procedure as to where the proceedings could be taken. Section 127 prescribes for the alteration in the allowance in the change of circumstances and sub-section (2) of Sec. 127 Cr. P. C. provides that where it appears to the Magistrate that in consequence of any decision of a competent civil court any order made under Section 125 should be cancelled or varied, he shall cancel the order or as the case may be vary the same accordingly. Section 128 Cr. P. C. refers to the enforcement of the order of maintenance. Various provisions contemplate that the order which has once been passed unless it is varied or vacated or modified, it subsists. A discretion has been given to the Magistrate to grant maintenance either from the date of order or from the date of application. The proviso to sub-section (3) of Sec. 125 Cr. P. C. provides that no warrant shall be issued for the recovery of the amount due under that 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. Suppose, in a particular case after the submission of the application no orders are passed within one year and the Magistrate is of the opinion that the maintenance should be granted from the date of application, then whether he becomes functus officio for enforcement of the order passed by him because of this proviso. Under Section 125 (3) if any person fails to comply with the order passed for maintenance, then the Magistrate may issue a warrant for levy of the amount due in the manner provided for levying fine 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 if sooner made. The proviso to this sub-section prohibits the issue of warrant of recovery of any amount due under that 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. Section 421 prescribes the procedure to issue warrant for levy of fine, which could be by attachment and sale of any movable property belonging to the offender or it could be recovered as an arrear of land revenue from the movable or immovable property or both of defaulter. In the case of Gupteshwar V. Rampeari (4) it was held that if the order was passed more than one year after the date of original application under sub-section (l) the amount could not be said to be due prior to the date of the order. There may be circumstances putting restrictions even to move the application under Sec. 125 (3) If against the order passed under Sec. 125 (3) a revision petition/appeal is filed and stay is granted, then that period will be excluded. There may be similar other circumstances when the person entitled under e. c. 125 (1) may not even be in a position to move the application for maintenance. Section 125 (3) has contemplated each month's default as a separate offence and normally the application has to be made within a period of one year from the date on which the amount has become due. In a case where the first order has been passed after the expiry of one year, the application has to be made within one year from the date of such order. But in respect of subsequent months, the amount become due every month and therefore the application has to be made within a period of one year from the date on which the said amount has became due in respect of the month concerned. The provisions of chapter IX of the Code of Criminal Procedure provide the summary remedy to serve the social purpose. On one hand a drastic step is proposed for issuing of a warrant and on the other hand a clog has been put on the power of the Magistrate to issue such a warrant if the application has been made after one year of the amount having become due. The non compliance with the order passed under Sec. 125 (1) may result even in imprisonment for a term which may extend to one month and therefore a strict view has to be taken which affects the liberty of a person vis-vis who was even sleeping over his/her right. The claimant can file a civil suit in respect of the arrears for three years but for imprisonment of issue of a warrant which may be the imprisonment in accordance with the provisions of Sec. 125 (3) Cr. P. C. strict compliance has to be made, and application must be filed within a period of one year from the date on which the amount has become due. No doubt this interpretation may affect the rights of the sufferer but it is for the legislature to take appropriate steps in the matter, and the court cannot add to the language which has been used in the section. Whether the provision is mandatory or directory can be seen from the language used in the section. When the section itself use the words no warrant 'shall be issued' there is prohibition on the power of the court to issue the warrant and the provision has to be considered as mandatory and not directory.
(3.) IN these circumstances, the reference is answered as under- "the first proviso to sub-section (3) of Section 125 Cr. P. C. is mandatory in nature and this court is not empowered to issue warrant for recovery of unpaid amount of arrears of maintenance if it is beyond one year from the date on which it became due". .;