Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2009
[Arising out of SLP (Crl.) No.6954 of 2007]
Amarendra Kumar Paul …..Appellant
Versus
Maya Paul & Ors. …..Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Appellants herein are aggrieved by and dissatisfied with a judgment
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and order dated 23 July 2007 passed by a learned Single Judge of the
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Calcutta High Court whereby and whereunder the order dated 15 February
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2006 passed by the Judicial Magistrate, 2 Court, Berhampore, in Execution
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Case No.186 of 2005 for execution of an order passed under Section 125 of
the Code of Criminal Procedure (for short, ‘the Code’) was upheld.
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3. The relationship between the parties is not in dispute. The 1
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respondent is the wife of the appellant herein. They have three children. 1
respondent herein filed an application in the year 1984 for grant of
maintenance in terms of Section 125 of the Code not only on her own behalf
but also on behalf of her two minor daughters, viz., Bandhu Priya Paul and
Bandhu Priti Paul as also her minor son, viz., Bandhu Prakash Paul from
February 1983. Pursuant thereto or in furtherance thereof an order was
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passed in her favour by a learned Magistrate on 24 August 1987 directing
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payment of maintenance @ Rs.500/- per month in favour of 1 respondent
and @ Rs.125/- per month for the three minor children.
An application for enhancement of the said amounts of maintenance
was filed which was registered as Misc. Case No.6 of 1993. The learned
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Chief Judicial Magistrate, by a judgment and order dated 13 July 1994,
directed enhancement of maintenance in respect of the said minor children
@ Rs.450/- per month from February 1993. A criminal revision case
thereagainst filed by the appellant was dismissed by the learned Sessions
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Judge by an order dated 18 February 1997. The said order was challenged
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by the appellant before the High Court and the High Court dismissed the
application being C.R.R.No.1852 of 1997 filed by the appellant by an order
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dated 12 March 2004 stating :
“13. I find, therefore, that there is no reason
whatsoever to interfere with the impugned order of
the learned Additional Sessions Judge,
Murshidabad dated 18.2.1997 in Criminal Motion
No.285/94 and the same is affirmed. This
revisional application has no merits and is,
therefore, dismissed.”
4. In the meantime, in the year 1998, an application for execution of the
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order dated 13 July 1994 was filed in the court of Chief Judicial Magistrate,
Murshidabad praying for maintenance for the period May 1997 and April
1998. The said application was dismissed opining that one of the objections
taken therein was that all the children had attained majority. The relevant
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portion of the said order dated 09 June 1999 runs as under :
“It appears that this execution case is filed
for the maintenance allowance of three children of
the Petitioner and for the period from May 1997 to
April 1998 in execution of the order passed in their
favour on 13.7.1994. It appears that the children
are 1) minor Bandhu Priya Pal, 2) minor Bandu
Priti Pal and 3) minor Bandhu Prokash Pal.
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Now it appears from the certified copy of
the petition for maintenance dated 31.8.1984, that
the then age of the claimant Bandhu Priya Pal was
8 years and of the other two was 5 years being the
twin of their parents. Therefore in 1997 all of
them were in the age of 18 or more than 18 years.
Hence, as per the order in execution and the
provision of law on this point the claimants are not
entitled to maintenance after attaining the age of
majority i.e. 18 years and, therefore, the objection
sustained and the instant case stands dismissed.”
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5. However, despite the same, the 1 respondent filed another Execution
Case bearing No.186 of 2005 before the learned Judicial Magistrate Second
Court, Berhampore claiming maintenance @ Rs.450/- per month on and
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from February 1993 to May 2004. By reason of an order dated 15 February
2006, the learned Magistrate Second Court, Berhampore, directed as under :
“Now, in the present case, the Petitioner has
filed an affidavit dated 6.5.05, wherein she
admitted that her son Bandhu Prakash Pal has
become major on 11.5.97. That her daughter
Bandhu Priya Pal has been married on 11.5.2003
and that Bandhu Priti Pal is still unmarried. The
copy of this affidavit has duly been served to the
learned advocate for the OP but he did not file any
objection, thereby admitting its content.
Moreover, at the time of hearing the learned
advocate for the OP admits the contents of the
affidavit.
Hence, I am to hold that the son is entitled to
maintenance till attaining majority as per provision
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of Clause (b), sub section (i), Section 125 Cr. P.C.
and that the daughters are entitled to maintenance
till marriage.
However, the application for the period from
May, 1997 to April 1998 has been dismissed by
this Court by order dated 9.6.1999 passed in Misc.
Ex. No.378 of 1998. Hence, I am not inclined to
allow maintenance to the Petitioner from May
1997 to April, 1998 as the same was earlier
rejected by this Court.
Hence, it is ORDERED that Bandhu
Prakash Pal is entitled to get maintenance till
11.5.1997, Bandhu Priya Pal is entitled to get
maintenance till 11.5.2003 i.e., the date of her
marriage and Bandhu Priti Pal is entitled to get
maintenance till May, 2004, as claimed in the
petition. All the three children are entitled to get
maintenance since February, 1993. The period
from May, 1997 to April, 1998, is to be excluded
in case of both the daughters of the Petitioner.”
6. Respondent no.1 filed a revision application thereagainst which was
dismissed stating :
“Having considered the rival submissions of
the learned advocates appearing for the parties, I
am of the opinion that the submissions made by
Mr. Mondal has sufficient force and he has very
correctly submitted that the question of limitation
for filing the execution case does not at all arise in
the instant case in view of the stay order passed by
the learned Sessions Court and then by this
Hon’ble Court. Thus, accordingly, there was no
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bar in entertaining the application for realization of
arrear maintenance. This application has no merits
and stands dismissed.
I further, make it clear that while computing
the amount of arrear maintenance, the learned
Judge must take into account, if any amount has
been paid towards the maintenance of the opposite
party no.1 by the Petitioner for the period in
question and for that purpose the Petitioner shall
be given reasonable opportunity to establish the
same and if the learned judge finally found that
any amount has been paid by the Petitioner for the
said period, the same is to be adjusted against
payment of arrear maintenance.”
7. Mr. R.K. Gupta, the learned counsel appearing on behalf of the
appellant would submit that the execution application for the purpose of
executing the order granting maintenance for the minor children was not
maintainable as they had attained majority. It was furthermore contended
that the period of limitation prescribed for filing an execution application for
executing an order under Section 125 of the Code being one year, the
impugned judgment cannot be sustained.
8. The learned counsel appearing on behalf of the respondents, however,
would support the judgment of the High Court.
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9. The learned Chief Judicial Magistrate, as noticed hereinbefore, in his
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judgment dated 09 June 1999, has categorically arrived at a finding of fact
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that in the year 1997, all the three children of the 1 respondent had attained
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majority. Bandhu Priya Paul was 8 years of age on 31 August 1984. She,
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thus, attained majority on or about 31 August 1994 whereas Bandhu Priti
Paul and Bandhu Prakash Paul, who were twins, being aged 5 years on the
said date, became major in 1997.
10. Sub-section (1) of Section 125 of the Code reads as under :
“ 125. Order for maintenance of wives,
children and patents, -(1) If any person having
sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b)his legitimate or illegitimate minor child,
whether married or not, unable to
maintain itself, or
(c) his legitimate or illegitimate child (not
being a married daughter) who has
attained majority, where such child is, by
reason of any physical or mental
abnormality or injury unable to maintain
itself, or
(d)his father or mother, unable to maintain
himself or herself,
a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his
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wife or such child, father or mother, at such
monthly rate, as such magistrate thinks fit, and to
pay the same to such person as the Magistrate may
from time to time direct:
Provided that the Magistrate may order the
father of a minor female child referred to in clause
(b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means.
Provided further that the Magistrate may,
during the pendency of the proceeding regarding
monthly allowance for the maintenance under this
sub-section, order such person to make a monthly
allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses of
such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as
the Magistrate may from time to time direct:
Provided also that an application for the
monthly allowance for the interim maintenance
and expenses for proceeding under the second
proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of
notice of the application to such person.
Explanation .-For the purposes of this Chapter.-
(a) “minor” means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 1875) is deemed not to have attained his
majority;
(b) “wife” includes a woman who has been
divorced by, or has obtained a divorce from,
her husband and has not remarried.”
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11. An application for grant of maintenance, therefore, is maintainable, so
far as the children are concerned, till they had not attained majority. As a
cause of action for grant of maintenance would arise only in the event a
person having sufficient means, neglects or refuses to maintain his
legitimate or illegitimate minor child unable to maintain itself. Once,
therefore, the children attained majority, the said provision would cease to
apply to their cases
12. Sub-section (3) of Section 125 of the Code provides for a period of
limitation, stating :
“(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 port of
each month’s allowance for the maintenance or the
interim maintenance and expenses of proceeding,
as the case may be, 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:
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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.”
13. A Division Bench of this Court in the case of Shantha @ Ushadevi &
Anr. v. B.G. Shivananjappa (2005) 4 SCC 468, held :
“ 7. It is true that the amount of maintenance
became due by virtue of the Magistrate’s order
passed on 20-1-1993 and in order to seek recovery
of the amount due by issuance of warrant,
application shall be made within a period of one
year from the date the amount became due. In the
present case, the application, namely,
Crl.Misc.Petition No.47 of 1993 was filed well
within one year. As no amount was paid even
after the disposal of the matter by the High Court,
the appellant filed IA No.1 in Crl.Misc.Petition
No.47 of 1993 wherein the arrears due up to that
date were calculated and sought recovery of that
amount under Section 125(3). Thus, IA No.1 was
filed even when Crl.Misc.Petition No.47 of 1993
was pending and no action to issue warrant was
taken in that proceeding. Crl.Misc.Petition No.47
of 1993 which was filed within one year from the
date the amount became due was kept alive and it
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was pending throughout. The purpose of filing IA
on 16-6-1998 was only to mention the amount due
up to date. The fact that the additional amount was
specified in the IA does not mean that the
application for execution of the order by issuing a
warrant under Section 125(3) was a fresh
application made for the first time. As already
noticed, the main petition filed in the year 1993
was pending and kept alive and the filing of
subsequent IA in 1998 was only to specify the
exact amount which accrued due up to that date.
Such application is only supplementary or
incidental to the petition already filed in 1993
admittedly within the period of limitation. The
fact that only a sum of Rs.5365 representing the
arrears of eight months was mentioned therein
does not curtail the scope of criminal
miscellaneous petition filed in 1993 more so when
no action was taken thereon and it remained
pending.”
14. A period of limitation is provided for in terms of the aforementioned
provision. However, in a case of this nature, Section 15 of the Limitation
Act would apply which reads as under :
“15. Exclusion of time in certain other
cases .-(1) In computing the period of limitation of
any suit or application for the execution of a
decree, the institution or execution of which has
been stayed by injunction or order, the time of the
continuance of the injunction or order, the day on
which it was issued or made, and the day on which
it was withdrawn, shall be excluded.
(2) In computing the period of limitation for
any suit of which notice has been given, or for
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which the previous consent or sanction of the
Government or any other authority is required, in
accordance with the requirements of any law for
the time being in force, the period of such notice
or, as the case may be, the time required for
obtaining such consent or sanction shall be
excluded.
Explanation .-In excluding the time required
for obtaining the consent or sanction of the
Government or any other authority, the date on
which the application was made for obtaining the
consent or sanction and the date of receipt of the
order of the Government or other authority shall
both be counted.
(3) In computing the period of limitation for
any suit or application for execution of a decree by
any receiver or interim receiver appointed in
proceedings for the adjudication of a person as an
insolvent or by any liquidator or provisional
liquidator appointed in proceedings for the
winding up of a company, the period beginning
with the date of institution of such proceeding and
ending with the expiry of three months from the
date of appointment of such receiver or liquidator,
as the case may be, shall be excluded.
(4) In computing the period of limitation for
a suit for possession by a purchaser at a sale in
execution of a decree, the time during which a
proceeding to set aside the sale has been
prosecuted shall be excluded.
(5) In computing the period of limitation for
any suit the time during which the defendant has
been absent from India and from the territories
outside India under the administration of the
Central Government, shall be excluded.”
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15. In fact, the order of stay had been granted by the revisional court as
also by the High Court in the aforementioned proceedings. The limitation for
filing application for execution would be computed upon excluding the
period during which the order of stay was operating.
16. We may place on record that the notice was issued only on the
question s to whether the amount of maintenance could have been directed
to be recovered despite the fact that the children had attained majority.
17. It appears that the said question was formulated on the basis of the
submission made at the Bar. We have dealt with all the questions raised
before us. In view of the findings arrived at by us, such a question does not
arise for consideration.
18. It is clear from the order of the learned Magistrate that no order of
maintenance was passed in favour of the children after they attained
majority. In that view of the matter, the question of recovery of any amount
from the petitioners towards the maintenance granted to the children after
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they had attained majority does not arise. In this case the direction has been
issued to recover the amount of maintenance only for the period prior to the
sons’ attaining majority and the daughters getting married and hence no
inference with the impugned judgment, in this behalf, is called for.
19. In any view of the matter, it, in our opinion, is not a fit case wherein
we should exercise our discretionary jurisdiction even it be assumed that the
Execution case was filed only by the respondent.
20. For the reasons aforementioned, this appeal is dismissed. However, in
the facts and circumstances of this case, there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
New Delhi.
August 4, 2009.