D.K. Sinha, J. - (1.) THE instant Criminal Revision is directed against the order impugned dated 21.7.2009 passed in Execution Case No. 1 of 2009 by the Principal Judge, Family Court, Deoghar by which the prayer made by the opposite party No. 2 herein for the payment of the arrears of the maintenance amount was granted calling upon the petitioner herein to pay pursuant to an earlier order dated 21.8.2003 in Criminal Misc. Case No. 13 of 1999 in a proceeding under Section 125 Code of Criminal Procedure.
(2.) THE prosecution story in short was that the wife -opposite party No. 2 had initiated a proceeding under Section 125 Cr. P.C. against the petitioner -husband Jagarnath Rout claiming a sum of Rs. 500/ - per month as monthly maintenance, however, on her prayer for ad -interim maintenance a sum of Rs. 250/ - per month was allowed by order dated 30.8.1999 in Cr. Misc. Case No. 13 of 1999. Upon final adjudication and hearing the parties final order was passed by awarding monthly maintenance to the tune of Rs. 500/ -calling upon the petitioner -husband to pay the opposite party No. 2 from the date of passing of the final order on 21.8.2003. When no amount was paid to the opposite party No. 2 Jayanti Devi @ Janti Devi by the petitioner after 21.8.2003 she filed an Execution Case No. 1 of 2009 for realization of the outstanding dues under Section 125(3) Code of Criminal Procedure from September. 2003 upto June 2009 @ Rs. 500/ - which was allowed by the impugned order as against the petitioner herein by issuing distress warrant. Mr. K.P. Deo, Learned Counsel appearing for the petitioner contended that the order impugned recorded by the Principal Judge, Family Court, Deoghar on 21.7.2009 by issuing distress warrant of arrest against the petitioner for realization of outstanding dues to the tune of Rs. 35,000/ - was not maintainable either in law or on facts. Law as laid down under Section 125(3) Cr. P.C. is a specific that for recovery of of such arrears of maintenance amount due for the period one year prior to the date of filing of the application was not maintainable. The proviso to Sub -section (3) of Section 125 Cr. P.C. puts an embargo on the power of the court to issue any distress warrant of arrest for recovery of amount due unless the application is made to the court within a period of one year from the date on which the amount became due. The Learned Counsel submitted that a similar view was taken in Bimala Devi v. Kama Mulia reported in, 1986 Cri.L.J 521. The Single Bench of the Orissa High Court observed: The proviso to Sub -section (3) of Section 125 of the Code in clear and categorical terms puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the court within a period of one year from the date on which it became due. Therefore, the Magistrate has a duty to find out the date on which the amount became due. Admittedly, the order of the Magistrate in this case granting maintenance is dt 26.4.1978. The matter remained pending in revision before the learned Sessions Judge for more than a year, but all the same it cannot be said that the amount in question was not due during that period. It is conceded before me that the learned Sessions Judge had not passed any order staying the operation of the Magistrate's order. In that view of the matter, it is not possible to hold that the amount in question did not become due during the period the matter was pending in revision before the learned Sessions Judge.
(3.) MR . Deo further submitted that in Sardar Beg Sahib v. Sidhani Bi reported in, 1987 Cri L.J. 1779 the Single Bench of the Madras High Court observed: The relevant provision of law in this matter viz, the first proviso to Section 125(3) Cr. P.C. is as follows: 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 Therefore, the law is not to the effect that no warrant can be issued for an amount of arrears of maintenance for more than 12 months, but the application should be made within a period of one year from the date on which it became duo, Whatever amount has become due before one year prior to the date of the application cannot be recovered by way of warrant, in this case, the maintenance became due on 19.10.1978. The first application was filed on 24.2.1981. The husband though properly given notice, was not present, and no representation was made. It is not clear whether there was any stay in the course of the appeal postponing the due date. Therefore, it has to be concluded that the maintenance became due from 19.10.1978. When the wife first applied in Cr. M.P. 383 of 1981 on 24.2.1981, she could have applied for recovering maintenance only from 24.2.1980. It appears that the husband has, by way of paying an amount of Rs. 600, managed to see that that application was kept pending for non prosecution. In the second application numbered as Cr. M.P. 3700 of 1982, the wife has stated that after the issue of distress warrant in Cr. M.P. 383 of 1981 a sum of Rs. 400/ - has been paid in addition to the sum of Rs. 200/ -already paid by him. Therefore, in the second application also, it was open to the wife to seek for the issuance of a warrant to recover the amount of maintenance due only from 24.2.1980. But for the reason that the warrant states that the amount of arrears of maintenance is from 19.10.1978 the warrant is not void, but the warrant has to be restricted to the recovery of maintenance from 24.2.1980.;