2005 ALL MR (Cri) JOURNAL 29
(KARNATAKA HIGH COURT)

M.S. RAJENDRA PRASAD, J.

B. G. Shivananjappa Vs. Shantha Alias Ushadevi & Anr.

Cri. Revn. Petn. No.753 of 2003

11th March, 2004

Petitioner Counsel: S. K. VENKATA REDDY
Respondent Counsel: S. A. SAMI

(A) Criminal P.C. (1973), Ss.401, 125(3) - Grant of maintenance to wife - Delay of 90 days in filing revision because of financial difficulties and illness - Held, petitioner has made out sufficient grounds for condoning delay - Court should not check entry of litigant at the threshold on the ground of technicalities and niceties of law. (Paras 7, 8, 9)

(B) Criminal P.C. (1973), S.125(3) - Arrears of maintenance - Application for - Has to be filed within one year from date on which it became due. (1977)2 Kant LJ 300 Rel. on. (1996)2 Crimes 479 (Bom) Dissented from. (Para 17)

Cases Cited:
Swati Suresh Ubale Vs. Suresh Laxman Ubale, (1996)2 Crimes 479 (Bom) [Para PARA4,10]
Vasudev Pardasani Vs. Smt. Nirmala, (1996)2 DMC 309 (Raj) [Para PARA4]
Yousuf Rawther Vs. Ashref, 1997 Cri LJ 4313 (Mad) [Para PARA4]
Hyder Ali Vs. Mustt. Rajia Begum, 2000 (3) Crimes 427 (Gau) [Para PARA4]
Nanhi Bai Vs. Netram, (2001) 2 DMC 387 [Para PARA4]
Surya Narayan Vs. Mohini Devi, (2001)2 DMC 554 (Raj) [Para PARA4]
Sarada Majhi Vs. Sanjaya Majhi, (2002)1 DMC 283 (Orissa) [Para PARA4]
Shama Rao Vs. Premilamma, (1977) 2 Kant LJ 300 [Para PARA13]
Lakshman Rao Shakharam Survase Vs. Mangala, ILR 1991 Kant 637 [Para PARA15]


JUDGMENT

-This criminal revision petition filed under Sections 397 and 401, Cr.P.C., is directed against the judgment dated 23-11-2002, in Cri. R.P. No.194/ 2000, on the file of the Ist Addl. District and Sessions Judge, Tumkur, wherein the learned Sessions Judge had allowed the Revision Petition preferred by the wife and daughter of the husband revision petitioner and had remanded the case to the trial Court for disposal in accordance with law, challenging the legality and validity of the order impugned.

2. The Court has heard the arguments of Sri S. K. Venkata Reddy, the learned counsel for the revision petitioner-husband and Sri S. A. Sami, learned counsel appearing for the respondents-wife and daughter.

3. The learned counsel for the revision petitioner-husband strenuously contended that the material on record clearly shows that the order impugned is illegal and improper. The learned Sessions Judge was not at all justified in arriving at the conclusion. The learned Sessions Judge had totally not considered the provisions of the Section 125(3) (sic) of Hindu Marriage Act. The learned counsel also contends that though there has been delay in filing the revision petition the same has been properly explained. Hence, the learned counsel prays for allowing the revision petition.

4. On the contrary, the learned counsel for the respondents-wife and daughter strenuously contended that the material on record clearly shows that the order impugned under the revision petition is legal and valid. The learned Sessions Judge was totally justified in passing the order impugned, particularly, in the light of the settled law in this regard. The learned counsel relied upon the following decisions in support of his contentions.

1) Swati Suresh Ubale Vs. Suresh Laxman Ubale, (1996) 2 Crimes 479 (Bom);

2) Vasudev Pardasani Vs. Smt. Nirmala, (1996) 2 DMC 309 (Raj);

3) Yousuf Rawther Vs. Ashref, 1997 Cri LJ 4313 (Mad);

4) Hyder Ali Vs. Mustt. Rajia Begum, 2000 (3) Crimes 427 (Gau):

5) Nanhi Bai Vs. Netram, (2001) 2 DMC 387

6) Surya Narayan Vs. Mohini Devi, (2001) 2 DMC 554 (Raj);

7) Sarada Majhi Vs. Sanjaya Majhi, (2002)1 DMC 283 (Orissa).

Placing reliance on the ratio laid down in the said decision, the learned counsel prayed for dismissal of the revision petition.

5. The Court has perused the material on record and has given its anxious thoughts over the contentions raised at the Bar.

6. At the outset it should be mentioned that there has been delay of 90 days in filing the revision petition and the revision petitioner has filed an application for condonation of delay, particularly, contending that on account of ill health and financial difficulties, he was unable to come to Bangalore and prefer the revision petition. This application is seriously opposed by the respondents.

7. By settled principles of law, it is clear that the Court should have a liberal approach while considering the application of this nature. The Court should not check the entry of the litigant at the threshold on the ground of technicalities and niceties of law.

8. From the material on record it is seen that a specific averment made in the affidavit to the effect that due to the financial difficulties of the petitioner, he was not able to file the petition in time and he was also not keeping well. The material on record also shows that the parties at issue have fighting the lis on merits from the inception. It may not be out of context, if it is mentioned, that on an earlier occasion also the litigation has reached this Court.

9. Taking into consideration the facts and circumstances of the case and settled law in this regard as stated above, this Court is of the opinion that the petitioner has made out sufficient grounds for condoning the delay and accordingly, IA-I stands allowed and the delay in filing the petition is condoned.

10. From the material on record, it is seen that the wife and daughter had filed petition under Section 125, Cr.P.C. for maintenance and after contest the Court has ordered for maintenance of Rs.500/- per month for wife and Rs.300/- per month to the daughter. The petitioner in Cri. Misc.No.47/93 had been filed before the trial Court under Section 125(3), Cr.P.C. for recovery of Rs.5,600/- towards arrears of maintenance. The said amount had been paid. Thereafter the petitioners filed IA-I claiming arrears of maintenance of Rs.46,700/- from 20-1-1993 till the date of filing of the Cri. Misc. 47/93. This application had been resisted by the husband by raising various objections and in particular, it was contended that in view of the statutory provisions of Section 125, Cr.P.C., the petition of this nature ought to have been filed claiming arrears of maintenance only for one year. The learned Magistrate upheld the contentions and rejected the petition filed under Section 125(3) of the Act. This order came to be challenged by the husband by means of revision petition before the learned Sessions Judge, who after hearing both sides had reversed the order of the learned Magistrate and had remanded the case to the trial Court for disposal afresh in accordance with law, particularly, relying upon the decision of the Bombay High Court reported in (1996) 2 Crimes 479. This order is under challenge by the husband before this Court.

11. On careful perusal of the statutory provisions, it is seen the petition under Section 125(3), Cr.P.C. will have to be filed claiming arrears of maintenance for a period of one year.

12. From the arguments canvassed before this Court, it is clear that the learned counsel for the petitioner has strenuously contended that the petition under Section 125(3) of Cr.P.C., ought to have been filed within one year and maintenance could be claimed for a period of one year from the date on which it becomes due. Patently, the learned Magistrate had dismissed the application wherein the wife and children had sought for recovery of Rs.46.700/- as arrears of maintenance from 20-6-1993 till the date of filing of the application, particularly, on the ground that the said application had been barred by limitation. At this stage, it is necessary to mention that the portion of provision of Section 125, Cr.P.C., which runs thus:

"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."

13. It is necessary to mention another decision of this Court in the case of Shama Rao Vs. Premilamma reported in ((1977) 2 Kant LJ 300), wherein this Court has held that the application under Section 125(3) of Cr.P.C. would be barred by limitation unless it was filed within the period of limitation.

14. Patently, the application seeking for arrears of maintenance of Rs.46.700/- is filed beyond the period of limitation. Taking into consideration the ratio laid down in the said decision and applying the same to the facts and circumstances of the case. It is clear that the said application is barred by limitation.

15. Another point that requires consideration of this Court is that, patently, there was no interim order of stay to come in the way of wife and child to enforce the order of maintenance. In this context, it is necessary to mention another decision of this Court rendered in the case of Lakshman Rao Shakharam Survase Vs. Mangala reported in ILR 1991 Kant 637,wherein this Court has held that "if the Sessions Judge had passed the order of stay of the operation of the Magistrate's order during the pendency of the revision petition, the starting point of one year could have been from the date of dismissal order of the Sessions Judge." In other words, this Court had held that wherever there has been an interim order of stay of the order granting maintenance, the starting point of one year will have to be calculated from the date on which the revision petition is concluded.

16. In the case on hand, patently, there was no interim order of stay throughout granted either by the Sessions Court or by this Court on the petition filed by the husband. In other words, there was absolutely no legal hurdle on the part of the wife and daughter to enforce the order of maintenance. If the concerned do not choose to file necessary application in this regard, it is not open for them to come out with such an application after expiry of the period of limitation.

17. As stated earlier, there was no order of stay granted either by the Sessions Court or by this Court relating to the order of the maintenance passed by the learned Magistrate. In view of these aspects and having regard to the said position of law, it is clear that the application was, patently, barred by limitation and the learned Magistrate was totally justified in turning down the claim of the wife and child for recovery of arrears of maintenance. However, the learned Sessions Judge has interfered with the order of the learned Magistrate placing reliance on the decision of the Bombay High Court reported in Swati Suresh Ubale Vs. Suresh Laxman Ubale, (1996) 2 Crimes 479. It is needless to say that the settled elementary principles of judicial discipline requires that the subordinate Courts are required to follow the judgments rendered by the High Courts and Supreme Court and the same are binding in nature. In other words, one cannot afford to. ignore the judgments of the Apex Court as the said judgments would have a binding force. Taking cue from the said two decisions of this Court, it is crystal clear that the application had been barred by limitation and at that stage, it was not open for the learned Sessions Judge to remand the matter to the trial Court placing reliance on the said decision of the Bombay High Court. This exercise on the part of the learned Sessions Judge is totally unjustifiable. In view of the discussions supra and the decisions cited in the course of the order, the decisions relied upon by the learned counsel for the respondents, cannot be pressed into service.

18. It is necessary to mention that the revisional powers of this Court are not only limited in its scope but also discretionary. In the case on hand, as stated earlier there has been an illegality in the order of the learned Sessions Judge in interfering with the order of the learned Magistrate and having regard to the facts and circumstances of the case and the settled principle of law in this regard, in the opinion of this Court, it would be appropriate to allow the revision petition as the same would meet the ends of justice.

19. For the foregoing reasons, the revision petition stands allowed. The order of the learned Sessions Judge impugned under the revision petition is hereby set aside, Consequently, the order of the learned Magistrate passed in Cri. Misc. No.47/1993 dated 13-7-2000, is restored.

Petition allowed.