V.S.DAVE,J. - (1.) THIS miscellaneous petition under Section 482, Cr.PC is directed against the order of Munsif and Judicial Magistrate, Sawai Madhopur dated 23rd July, 1987 where by he issued warrants for recovery of maintenance amount under Section 125(3), Cr.PC.
(2.) BRIEF facts, giving rise to this petition are that the petitioner and non -petitioner are husband and wife but living separately. The non -petitioner, Mst Geeta Bai, had filed a petition under Section 125, Cr.PC claiming maintenance against her husband, the petitioner, vide an application dated 25th August, 1982. This application was filed before the Chief Judicial Magistrate, Sawai Madhopur who accepted the same on 8th December, 1983 and granted maintenance with effect from the date of application i.e. 25th August, 1982 at rate of Rs 100/ - p.m. The non -petitioner applied for recovery of maintenance granted vide order dated 8th December, 1983 on 31st August, 1984 but this application was dismissed in default on 10th June, 1986. On 13th June, 1986 an application was moved by the non -petitioner in the Court of Munsif and Judicial Magistrate, Sawai Madhopur under Section 125(3), Cr.PC where in it has been mentioned that she had moved a similar application earlier wherein the date of hearing was fixed as 9th June, 1986 but that day was declared as a holiday and hence the file was taken up on 10th June, 1986 and was dismissed for default It was further mentioned that in fact the holiday initially announced by the Government was on 10 -6 -86 but later on it was changed, to 9 -6 -1986 and, therefore, there was a bonafide mistake on the part of the non -petitioner and in this view of the matter despite that order another application under Section 125(3), Cr.PC had been filed. It was prayed in the application that 45 months' commulative maintenance amounting to Rs. 4,500/ - upto 25th May, 1986 and Rs. 100/ - per month for future be granted. This application was contested by the petitioner but the learned Magistrate allowed the application and directed the insuance of warrant for recovery of Rs. 5,800/ - as maintenance with effect from 25 -8 -1982 to 25 -6 -1987. The learned Magistrate also sent a warrant of recovery for this recurring amount to his office at Kota where by Rs. 100/ - per month is directed to be deducted from his salary. It is contended by the learned Counsel for the petitioner that the order of Magistrate is absolutely without jurisdiction and amounts to abuse of the process of the court in as much as even the mandatory provisions of law have been ignored The submission of the learned Counsel is that the application under Section 125(3), Cr.PC had been rejected in default on 10 -6 -1986 and unless it was set aside, maintenance could be awarded prior to that date. In is further submitted that the learned Magistrate has acted without jurisdiction and with absolutely impropriety in sitting over the judgment of the learned Chief Judicial Magistrate. The submission is that on 10 -6 1986, the application was dismissed by Chief Judicial Magistrate who is an authority higher in rank than the Magistrate and after the rejection of the same if another application had to be filed, it should have been an application for review or recalling the order before the same authority. It is not the case of the party that the Chief Judicial Magistrate was not in town or the post was lying vacant as such in all property, the application dated 13 -6 -1986 should have been addressed and presented before the same Chief Judicial Magistrate who had dismissed it on 10th June, 1986 Besides this if this is not an application for recalling or reviewing the earlier order of rejection dated 10th June, 1986 then subsequently the learned Magistrate had vary limited jurisdiction and he could only grant maintenance from the date of filing of the application before him to the date of payment It is then submitted that at best non -petitioner could have claimed maintenance for a period of one year from the date of his filing application under Section 125(3) Cr. PC and the court does not have power to recover maintenance beyond a period of one year There is one more submission of the learned Counsel that question of realisation of maintenance accrued from month to month and, therefore a general direction cannot be issued to the office of the petitioner for deduction of Rs 100/ - per month directly from the wages of the petitioner. If is submitted that it was never contemplated by law that application under Section 125(3) Cr.PC should be filed only before the Magistrate who had initially entertained the application but it may be filed for enforcement of the order of maintenance before the Magistrate in Kota later on and not at Sawai Madhopur because the petitioner against whom the order was made, is staying at Kota. Reference has been made to Section 128 Cr.PC.
(3.) LEARNED Counsel for the non -petitioners submits that application under Section 482 Cr PC could not at all be entertained because it has been filed on behalf of the weaker sex and who has been deprived of maintenance for such a long period Learned Counsel submits that it was a mistake of the lawyer, who filed the application on 13th June, 1986 that it was presented before the Magistrate instead of Chief Judicial Magistrate who had rejected the earlier application but party should not be made to suffer on that count It is submitted that even if there is an error to that effect it is not such an error for which interference should be done in proceedings under Section 482 Cr. PC. He then submits that the Magistrate at Sawai Madhopur has concurrence jurisdiction with that of the Magistrate at Kota because Section 128 Cr PC is an additional mode for enforcement of the order of maintenance then one mentioned in Section 125(3) Cr PC It is also submitted that there is no error in giving a general direction to the office of the petitioner for recovery of monthly amount of maintenance.;