Benny Varghese v. Siby P. Kuruvilla

1. The Revision Petitioner herein is the respondent in M.P No. 51 of 2012 in M.C No. 345 of 2006 on the files of the Family Court, Muvattupuzha. He is the husband of the 1st respondent and the respondents 2 and 3 are the minor children aged 10 years and 7 years respectively, bom in that wedlock. The respondents herein filed M.C No. 345 of 2006 before the Family Court, Emakulam, seeking maintenance allowance from the Revision Petitioner herein. The above M.C was allowed by an order dated 16.10.2009 directing the Revision Petitioner to pay maintenance allowance @ Rs. 750/- per month to the respondents 1 to 3 from 2.12.2006, the date of petition.

2. To enforce the said order, on 29.12.2012 the Family Court issued warrant under S. 421(b) Cr.P.C since the balance due from the Revision Petitioner as on that date was Rs. 1,05,750/-. The Revision Petitioner challenged the above order before this Court by filing R.P (FC) No. 32 of 2013. This Court, as per order dated 29.1.2013, set aside the order dated 29.12.2012 and directed the Family Court to hear both parties and to pass an order afresh in accordance with law. The impugned order was passed in M.P No. 51 of 2012, apetition filed by the respondents under S. 128 of the Criminal Procedure Code to realise the total amount of Rs. 1,23,750/- from the Revision Petitioner. The respondents have claimed arrear for 55 months i.e, for the period from 2.12.2006 till 21.7.2011, the date of filing M.P 51/2012. This Petition was opposed by the Revision Petitioner contending that the respondents are not entitled to claim maintenance for more than one year. As per the proviso to sub-section (3) of S. 125, no warrant shall be issued for recovery of any amount due under the above section, unless the application is made within a period of one year from the date on which it became due. The respondents can claim arrear only for one year prior to the date of filing of the petition.

3. The Court below considered the question whether the respondents are entitled to realise Rs. 1,23,750/- from the Revision Petitioner, i.e, whether the respondents are entitled to claim arrear for a period beyond one year. After considering the rival contentions, the Family Court found that the respondents are entitled to get the full amount as claimed i.e, the period beyond one year. The legality, propriety and correctness of this order is under challenge in this Revision Petition.

4. Sri. Saigi Jacob Palatty, the learned counsel for the Revision Petitioner submits that the impugned order is illegal, unsustainable and issued in a mechanical manner without application of mind. The Court below had clearly erred in not considering, whether the application has been filed within the prescribed time. As per the proviso to sub-section (3) of S. 125 of the Cr.P.C, the application should have been presented by the respondents within one year from the date on which the amount has become due; but that aspect was not considered by the court below in its correct perspective. But, in the instant case maintenance has become due on 16.9.2009 Therefore, as per the proviso to sub-section (3) of S. 125, the execution ought to have been filed on or before 16.10.2010 But in this case the execution petition was filed only on 21.7.2011, claiming the entire arrear of Rs. 1,23,750/-. The amount claimed, is the amount accrued for a period beyond one year from the date on which it became due. The learned counsel further cited the decision in Ganga Prasad…Applicant; v. Smt. Gomti…Opposite Party. (2000 Crl. LJ. 3914 (All.); (2000 KHC 2709).

5. Per contra, Sri. T.K Sajeev, the learned counsel for the respondents submits that the respondents 2 and 3 are minors, aged 10 years and 7 years respectively. So they are legally disabled to sue or be sued during the period of minority. Therefore, they are entitled to get the benefit and protection under S. 6 of the Limitation Act. Consequently, the period of one year provided for initiation of enforcement proceedings under S. 125(3) of the Cr.P.C is not applicable in the case of minors as the minors are legally disabled to sue or be sued. The learned counsel for the respondents cited the decision rendered by the Andhra Pradesh High Court in Laxmi v. Nakka Narayan Goud (1994 Crl.LJ 565). Further, the learned counsel cited the decision in Shantha Alias Ushadevi v. B.G Shivananjappa ((2005) 4 SCC 468) and canvassed the point that S. 125 is a benevolent social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. Therefore, in the case of the claim of minors, for maintenance, a liberal as well as purposeful interpretation is to be taken so as to achieve the aim and object of the legislation.

6. In view of the rival contentions, the questions to be considered in this Revision Petition are:

(i) Whether the minors seeking enforcement of maintenance order under sub-section (3) of S. 125 of the Cr.P.C is entitled to get the benefit and protection of legal disability provided under S. 6 of the Limitation Act.

(ii) Whether initiation of enforcement proceedings for realising maintenance arrear due to minors for a period beyond one year from the date on which it became due under S. 125(3) of the Cr.P.C is barred by limitation?

7. First of all, let us have a look at the proviso to sub-section (3) of S. 125. According to the said Proviso, no warrant shall be issued for the recovery of any amount due under S. 125, 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. Thus, the general provision is that an execution petition for arrear of maintenance for a period beyond one year is neither maintainable nor enforceable under S. 125(3). But, indisputably, a minor is legally disabled to sue or be sued independendy during the period of his minority. There arises the question whether the minor-maintenance holder under S. 125 is entitled to get the protection under S. 6 of the Limitation Act. According to S. 6 of the Limitation Act, where a person entitled to institute a suit or make an application for the execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased; as would otherwise have been allowed from the time specified therefor in the third column of the Schedule. Thus, for making an application for execution, the minor gets the same period after the disability has ceased. Then, the question is whether S. 6 of the Limitation Act is applicable to the claim of minor-maintenance holders under S. 125(3) of the Code of Criminal Procedure. Then, the point is, whether the application of S. 6 is specifically excluded under Chapter IX of the Code of Criminal Procedure.

8. According to S. 29(2) of the Limitation Act, for the purpose of determining any period of limitation prescribed for any suit or application, by any special law or local law, the provision contained in Ss. 4 to 24 shall apply in so far as to the extent to which they are not expressly excluded by special law or local law. When applying the above test to determine whether S. 6 is applicable to minor-maintenance holder, it could be seen that the application of S. 6 is not specifically excluded under Chapter IX of the Cr.P.C If that be so, undoubtedly, the minor-maintenance holders under S. 125(3) of the Cr.P.C would get protection of legally disabled persons for filing execution petition for realising arrear of maintenance allowance due for a period beyond one year. To sum up, even though proviso mandates that unless the application be made to the court to levy amount of arrear within a period of one year, no warrant shall be issued for the recovery of any amount due under the Section, in the case of minor-maintenance claim holders, the S. 6 of the Limitation Act would come to rescue them, for the entire arrear accrued by the time of his attaining majority, a petition can be filed within one year of attaining majority. Needless to say, so long as the said minor does not attain majority, for the enforcement of maintenance due in arrear, there can be no limitation of one year under the proviso to S. 125(3) of the Cr.P.C and such application is maintainable and enforceable after the period of one year for realising the amount became due for a period beyond one year by issuing warrant, against any person so ordered.

9. The above findings are supported by the decision of the Andhra Pradesh High Court in Laxmi v. Nakka Narayan Goud (1994 Crl.LJ 565) There, the court held that minor-maintenance holder is entitled to get protection under S. 6 of the Limitation Act. Further, in the decision in Shantha Alias Ushadevi v. B.G Shivananjappa, (2005) 4 SCC 468), the Apex Court held that, it is incumbent upon the court to interpret the provisions of a welfare legislation, liberally, so as to effect the aim and object of the legislation.

10. Therefore, in this Revision Petition, the 1st respondent is not entitled to recover arrear for a period more than one year from the date on which it became due, by enforcing the order under S. 125(3) of Cr.P.C But, indisputably, respondents 2 and 3 are minors. So the respondents 2 and 3 are entitled to recover maintenance arrear for a period beyond one year as they claimed by enforcing the order under S. 125(3) of the Cr.P.C

11. The learned counsel for the Revision Petitioner submits that the Revision Petitioner is suffering from acute financial crisis caused by the paucity of funds and he requires some time to pay the arrear. Having regard to the above submission, the Revision Petitioner is given three months' time to pay the arrear. The Family Court can enforce realisation of the arrear in accordance with this order.

12. This Revision Petition is allowed in part.