V.K.SINGHAL, J. - (1.) THE following question has been referred by the learned Single Judge inview 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? In the case of Purshottam Das Vanjani v. Asha Rani, 1983 Cr.L.R.(Raj) 434 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 requests 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 Section 125(3) Cr.P.C. he should have paid this amount. The same view was taken in the case of Sukhdeo Singh v. State of Rqjasthan 1987 (1) WLN -545.
(2.) ON the other hand in the case of Ganga Ram v. Smt. Jakali and Ors. 1991 -Cr.L.R.(Raj) 423, it was held that the court 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 Section 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 there is 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.
(3.) 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. Besides 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.;