MANIBEN ALIAS MADHUBEN MOTIGIR GOSWAMI Vs. MANIBHAI MOHANGIR GOSWAMI

JUDGEMENT

(1.) Petitioner Maniben alias Madhuben has come to this with a grievance that the learned Sessions Judge Baroda has reduced the amount of maintenance to be paid to her from 5 100 as ordered by the learned Judicial Magistrate First Class to Rs. 1 800 This was done by the learned Sessions Judge consideration that the application for recovery of amount of mainunder sec. 125 (3) of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) permits recovery of the amount of arrears of maintenance for one year only. This decision was given on the strength of first proviso to sub-sec. (3) of sec. 125 of the Code. Sub-sec. (3) of sec. 125 of the Code reads as under:

(2.) I am afraid the learned Sessions Judge has not correctly applied the provisions of law; though apparently he has stuck to the strict terminology used in the section. This Court (A.M. Ahmadi J.) in . has specifically observed that the provisions (first proviso to sub- sec. (3) of sec. 125 of the Code) are not in the nature of penal provisions but are welfare provisions and hence the rule of strict construction cannot be invoked. The first proviso which enacts a rule of maintenance must therefore receive a liberal construction as it is not intended to come to the rescue of a defaulting husband who neglects to honour his obligations and seeks to avoid payment of maintenance to his wife though ordered by a competent Court. It is of course true that the facts in that case were different but the principles enunciated would be applicable.

(3.) In JAGAT BANDHU SAHU V. LAKSHMI DEI, AIR 1955 ORI 227 the Orissa High Court considered the case of a wife who applied for realisation of arrears of maintenance due. That claim also included certain amount which was for a period more than one year. But in the application it was clearly stated by the wife that the sum had already been claimed by her in an application brought with in time but it could not then be realised. On these facts the Orissa High Court held that under those circumstances the application should be taken to be the continuation of the previous application upon which it was not possible to realise the amount due to the inability Of the Court. The claim was therefore not barred by limitation and the Magistrate was justified in issuing a warrant for realisation of the arrear of maintenance. Then it has been further observed as observed by this Court in case of Parmar Chimanbhai Ghemabhai (Supra) that the limitation provided in the second proviso to sub-sec. (3) should not be so constructed as to give a loophole for a negligent husband to avoid payment in the first instance and then by evading appearance before the Court when the application is made raise the plea of limitation. I fully concur with these observations of the Orissa High Court.