- 1 - CRL.RP No.100234 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 07TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.100234 OF 2017 BETWEEN: SMT. AKHTHARKHANUM W/O. FATEH AHMED HALLIYALKAR @ KAKAR, AGE: 42 YEARS, OCC: HOUSE WIFE, R/O: GANDHI NAGAR, DHARWAD. …PETITIONER (BY SRI R.H. ANGADI, ADV. AND SRI PRAKASH R.BADIGER, ADV. FOR PETITIONER) AND: FATEH AHMED S/O. HALLIYALKAR @ KAKAR, AGE: 52 YEARS, OCC: SERVICE, F.D.A. IN PRIMARY HEALTH CENTRE, KHANAPUR, DIST: BELAGAVI, R/O: TIPPU SULTAN NAGAR, PEERANWADI, BELAGAVI. …RESPONDENT (BY SRI SURESH SHETTEMMANAVAR, ADV. FOR RESPONDENT) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO ALLOW THE PETITION AND TO SET ASIDE THE IMPUGNED ORDER DATED 07.04.2017 PASSED IN CRL. MISC. NO.241 OF 2015 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, DHARWAD AND CONSEQUENTLY ALLOW THE PETITION AND FILED BY THE PETITIONER AND ETC., THIS CRIMINAL REVISION PETITION, HAVING BEEN HEARD AND RESERVED ON 29.11.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 2 - CRL.RP No.100234 of 2017 CORAM: THE HON’BLE MS. JUSTICE J.M.KHAZI CAV ORDER (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) This petition filed under Section 397 r/w 401 Cr.P.C is by the wife against her husband, challenging the order passed by the Family Court by which her petition for recovery of maintenance for a period beyond 12 months from the date of petition came to be rejected, holding that it is barred by limitation. 2. The marriage of petitioner and respondent was solemnized on 10.05.1994. It is alleged that as the respondent started ill treating the petitioner, she was forced to leave the matrimonial home. Since he did not provide any maintenance to her, she approached the II Addl. Civil Judge and JMFC, Dharwad in Crl.Misc.No.124/07. It was allowed granting maintenance at Rs.5000/- per month. In Crl.P.No.10871/2011 filed by the respondent, this Court reduced the maintenance to Rs.2500/- per month. Later, petitioner filed - 3 - CRL.RP No.100234 of 2017 Crl.Misc.No.246/2014 before the Family Court wherein the maintenance was enhanced to Rs.4000/- per month vide order dated 27.09.2016. Since respondent failed to comply with the order passed by the Family Court, petitioner filed Crl.Misc.No.241/2015 under Section 125(3) Cr.P.C for enforcing the order. However, by the impugned order, the Family Court has dismissed the same on the ground that it is barred by limitation. 3. Aggrieved by the same, the petitioner is before this Court contending that it is not only erroneous, but also perverse, capricious and contrary to the settled principles of law and request to set aside. Section 125(3) does not stipulate any limitation. The same is not properly understood by the trial Court. Petitioner is entitled to receive the maintenance. Her legitimate right to receive the maintenance cannot be denied. Therefore order is liable to be set aside and hence the petition. 4. In support of his arguments, learned counsel for petitioner has relied upon the following decision: - 4 - CRL.RP No.100234 of 2017 (i) Poongodi and others Vs Thangavel (Poongodi)1 5. After due service of notice, respondent has appeared through counsel. 6. Heard arguments of both side and perused the record. 7. The short question that arises for consideration is whether any limitation is prescribed for enforcing the order granting maintenance under Section 125 CR.P.C? 8. Section 125 of Cr.P.C makes provision for order for maintenance of wives, children and parents. It provides that if any person having sufficient means neglects or refuses to maintain, his wife who is unable to maintain herself or his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or his legitimate or illegitimate child (not being a married daughter), who has attained majority, where such child is, by reason of 1 (2013) 10 SCC 618 - 5 - CRL.RP No.100234 of 2017 any physical or mental abnormality or injury, unable to maintain itself or his father or mother, unable to maintain himself or herself. 9. On proof of such neglect or refusal, the Magistrate may order such person to make a monthly allowance for maintenance. 10. Proviso to sub-section (1) enable the Magistrate to grant maintenance to even a married minor daughter where he is satisfied that the husband of such minor married daughter is not possessing sufficient means to maintain her. The second proviso empowers the Magistrate to grant interim maintenance and also the expenses of the proceedings. The third proviso requires that the application for interim maintenance is to be disposed of within a period of 60 days as far as possible. 11. Sub-section (2) of Section 125 provides that such order of maintenance may be passed from the date of application or from the date of order as the case maybe. - 6 - CRL.RP No.100234 of 2017 12. Sub-section (3) of Section 125 deals with execution of the order. From the reading of this provision, it is clear that when any person so ordered to pay maintenance fails to pay the same without any sufficient cause, the Magistrate may for every such breach issue warrant for levying the amount due in the manner provided for levying fines, and may also sentence such person to imprisonment for a term which may extend to one month or until payment, if sooner made, for the whole or any part of each month’s allowance. Thus, two modes of recovery is contemplated: (i) Recovering the same as a levying fines, and (ii) Sending the defaulter to imprisonment for a month for every default or part thereof. 13. In addition to these two modes, the petitioner may also recover the arrears by other modes like attachment of salary, attachment of movable properties, etc. 14. No provision under Section 125 states that the petitioners are required to recover the arrears of - 7 - CRL.RP No.100234 of 2017 maintenance within one year and enforcement of any maintenance beyond a period of one year would be barred. 15. However, first proviso to sub-section (3) of Section 125 prohibits the Magistrate from issuing a warranty for recovery of any amount to due under the said Section unless the application is made to the Court to levy such amount within a period of one year from the date on which it became due. In other words, when the petitioner want the Magistrate to issue a warrant to levy such amount and in default send the respondent to prison he/she shall file the petition within a period of one year from the date on which it become due. The limitation of one year is for the purpose of recovering the maintenance by issue of fine levying warrant with default sentence of imprisonment. However, the petitioner is at liberty to recover the areas by other modes. 16. This situation is clarified by the Hon’ble Supreme Court in Poongodi referred to supra. In that case, the High Court held that the petitioners were entitled - 8 - CRL.RP No.100234 of 2017 to claim arrears for a period of one year preceding the date of filing application and had confined entitlement of the petitioners to maintenance to a period of one year prior to the date of filing the application. The Hon’ble Supreme Court held that it has not found that Section 125(3) of Cr.P.C creates bar or in any way effect entitlement of claimant to any of maintenance. The first proviso of Section 125(3) did not extinguish or limit entitlement of petitioners to receive maintenance granted by the trial Court. 17. The Hon’ble Supreme Court further held that having considered the provision of Section 125(3) of Cr.P.C, it does not create a bar or in any way effects the entitlement of a claimant to arrears of maintenance. What the proviso contemplates is that the procedure for recovery of maintenance under Section 125(3) of Cr.P.C, namely, by considering the same to be a levy of fine and the detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the Court within a period of one - 9 - CRL.RP No.100234 of 2017 year commencing from the date on which the entitlement to receive maintenance has accrued. However, in such a situation, the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available. 18. In the above decision, the Hon’ble Supreme Court has referred to the its decision in Kuldeep Kaur Vs Surinder Singh and Anr reported in (1989) 1 SCC 405 and extracted para 6 of the judgment as under: "6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realized that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the - 10 - CRL.RP No.100234 of 2017 essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is Parliament in its wisdom has not said so. Commonsense does not support such a construction. From where does the court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been discharge by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is only a mode of method of recovery and not a substitute for recovery. No other view is possible. That is the reason why we set aside the order under appeal and passed an order in the following terms….." 19. Thus, from the plain reading of Section 125(3) of Cr.P.C and in the light of the above referred decisions of the Hon’ble Supreme Court, it is crystal clear that no period of limitation is specified for enforcing an order of maintenance. When the petition for executing the order is filed beyond a period of one year, the advantage of recovering the same by issue of warrant for levying the amount due in the manner provided for levying fines and also sentencing the respondent to imprisonment for - 11 - CRL.RP No.100234 of 2017 violation would not be available. However, the petitioner would be entitled for recovering the same by other modes. Therefore, the Family Court has erred in dismissing the petition filed for recovery of maintenance arrears. In the result, the petition deserves to be allowed and accordingly the following: ORDER (i) Petition filed under Section 397 r/w 401 Cr.P.C is allowed. (ii) The impugned order dated 07.04.2017 passed by the Prl.Judge, Family Court, Dharwad in Crl.Misc.No.241/2015 is set aside. (iii) The petition is restored to the file with a direction to the Family Court to execute the same in accordance with law and in the light of the decision of the Hon’ble Supreme Court in the above referred judgments. - 12 - CRL.RP No.100234 of 2017 (iv) Send a copy of the order to the Family Court forthwith. SD/- (J.M.KHAZI) JUDGE RR CT: UMD