Criminal - limitation period for minors - Section 3 of Limitation Act, 1963 and Section 125 of Criminal Procedure Code, 1973 - whether limitation of one year under 1st Proviso to Sub-section (3) of Section 125 applicable to minors - minors are not sui juries mere fact that they can be represented by mother, father of other guardian is of no consequence - 1st proviso of Sub-section (3) of Section 125 applicable to major - maintenance holders and not minor-maintenance holders - held, limitation of one year specified under 1st proviso to Sub-section (3) of Section 125 not applicable to minors.
Andhra High Court
Laxmi And Ors. vs Nakka Narayan Goud And Anr. on 4 October, 1993
Equivalent citations: 1994 CriLJ 565, I (1994) DMC 224
1. This Criminal Revision rather poses an important question as to whether the limitation of one year under the 1st proviso to sub-section (3) of Section 125, Cr.P.C. is applicable to the minors for enforcing the order of maintenance passed in their favour.
2. Four minor children, two male and two female, represented by their mother are the petitioners herein. The 1st respondent is their father. On the ground that the 1st respondent neglected the wife and the children, the wife on her behalf and also as a guardian of the minor children initiated proceedings in M.C. No. 9 of 1985 on the file of the Court of the Judicial First Class Magistrate, Shadnagar for the grant of maintenance to her and her minor children. The order of maintenance sought for was granted but on revision by the 1st respondent to the Court of Sessions, the latter while setting aside the maintenance order in favour of the wife, sustained the order of maintenance granted in favour of the petitioners. The order of the Court of Sessions is dated 26-2-1990. The petitioners filed Criminal M.P. No. 288/90 claiming arrears of Rs. 10,800/- for 54 months and seeking issuance of distress warrants for the recovery of the said amounts and on 22-10-1990, such warrants were issued. The issuance of such warrants was challenged by the 1st respondent by filing a revision in the Court of Sessions, but the said Court dismissed the same, thus, confirming the distress warrants. During the pendency of the distress warrants, another petition was filed on behalf of the petitioners in Cri. M.P. No. 571/91, dated 17-12-1991 for recovery of arrears of Rs. 2,400/- for the period from 10-12-1990 to 10-12-1991 and the Court of Magistrate has again issued warrants for realisation of the said amount. As the warrants were returned on the ground that no properties were available, Cri. M.P. No. 288/90 was dismissed with endorsement that the sum claimed in the said petition is clubbed with Cri. M.P. No. 571/91, for composite action. When the order was to be enforced for realisation of Rs. 13,200/- the 1st respondent has filed a revision before the Court of Sessions, Mahabubnagar contending that the claim for maintenance was time-barred as most of the amount claimed was for the period beyond one year as on the date of the filing of the Criminal M.P. No. 571/91. The said contention found favour with the Court of Additional Sessions Judge, Mahabubnagar in Criminal R.P. 10 of 1992 and by order dated 29-6-1992, the revision was allowed setting aside the order of enforcement passed by the Judicial First Class Magistrate, Shadnagar in Criminal M.P. No. 571/91 which provoked the petitioners to file this revision.
3. The 1st proviso to sub-section (3) of Section 125, Cr.P.C. pleaded on behalf of the 1st respondent reads :
"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."
Mr. C. Praveen Kumar, the learned counsel for the petitioners contends that the order passed by the Court of Magistrate is valid and sound and that there were no grounds to reverse the same by the Court of Sessions. Mr. K. Mahipathi Rao, the learned counsel for the 1st respondent contends to the contra. His contention is that as the pending application for enforcement was filed admittedly beyond the period of one year, the same is time-barred and the dismissal of Criminal M.P. No. 288/90 will not save the limitation and on the other hand has extinguished the right.
4. This is not a case dealing with enforcement of a major-maintenance holders like wife, father or mother. This enforcement claim pertains to the minor-children. May be, the minor children are represented by their next friend and guardian i.e. their mother, who is the wife of the 1st respondent. But, that makes no difference as even though the application is made by a mother on behalf of her children, essentially it is the application filed by the minors and pertains to their entitlement of realisation of the maintenance order passed in their favour. The pertinent question is as to whether this limitation of one year specified under the 1st proviso to sub-section (3) of Section 125, Cr.P.C. can be applicable at all to minors' application for enforcement. In my considered view, the answer is 'NO' and my reasons therefor are mentioned infra.
5. The matters relating to the right of initiation of the proceedings for maintenance (Section 125 Cr.P.C.), procedure to be followed touching upon the institution including the place thereof and the enquiry (Section 126 Cr.P.C.), variation or cancellation of the order (Section 127 Cr.P.C. and the enforcement of the maintenance order (Section 128 Cr.P.C.) make it abundantly clear that the matters relating to maintenance and further proceedings embodied specially and providing them separately under Chapter IX Cr.P.C. are self contained one, unrelated to other provisions of Cr.P.C. A petition or an application, by whatever name it is called, under Section 125 Cr.P.C. is not a complaint and once such a petition is filed, there is no option for the Court of Magistrate excepting to receive the same and issue process to the respondent. There is no right for the Magistrate to dismiss the application in limine. In fact, the proceedings under Section 125 Cr.P.C. and the related proceedings are civil in nature. This has been so held by the Supreme Court inNand Lal V. Kanhaiya Lal, and Jagir Kaur v. Jaswant Singh, . Even though one year's period for initiation of enforcement proceedings for the purpose mentioned under the 1st proviso to sub-section (3) of Section 125 Cr.P.C. is applicable for the major-maintenance holders such as wife and parents because of Section 3 of Limitation Act, 1963, the same is not applicable to the minor-maintenance holders because of the benefit conferred upon the legally disabled under Section 6 of the Limitation Act, 1963. Section 6 dealing with legal disability is applicable in view of Section 29(2) of Limitation Act, 1963 as the application of Section 6 thereof is not specially excluded under Chapter IX of Criminal Procedure Code. The minors are not sui juries and the mere fact that they can be represented by mother, father of other guardians is of no consequence. Section 6 of the Indian Limitation Act, 1963 keeps the limitation in abeyance if the person is a minor, insane or an idiot. In so far as the order of maintenance under Chapter IX of Cr.P.C. is concerned, once a minor attains majority and if the said person after attaining of majority is not suffering from any mental or physical handicap, the maintenance order passed in his favour automatically disappears. Even then for arrears accrued by the time of his attaining the majority, petition can be filed within one year of the attaining of said majority. But, so long as the said minor does not attain the majority, for the enforcement of the order of maintenance, there can be no fetter of limitation prescribed under the 1st proviso to sub-section (3) of Section 125 Cr.P.C. and the said provision has to be read down that the said limitation is only applicable to major-maintenance holders and not minor-maintenance holders.
6. Here again I have to comment regarding the action of the Court of Magistrate in adopting cumbersome procedure of seeking to attach the properties of the 1st respondent and thus, delaying the order of enforcement which frustrates the very object of speedier remedy contemplated under Section 125 Cr.P.C. Having regard to the object and intendment of Section 125 Cr.P.C. I have held in Chitti Prasada Rao v. Chitti Asiripolamma, 1993 (1) ALT 22 NRC that a maintenance case shall be disposed of within a period of six months and in no even the said period shall exceed one year unless interrupted by a stay of superior court. If the enforcement petition is kept pending for a longer time, the fruits of the maintenance order will get delayed unduly thereby depriving the deponents-derelicts from getting their basic needs of food, clothing shelter etc. Act such, the proper method to enforce the maintenance order is by way of prescribing time for payment for arrears and for future payments and if there is a default, to issue a warrant of arrest and order imprisonment against the person suffering the order of maintenance, till the amount of maintenance is paid. Again, this is a method for prompt and expeditious payment of the amount of maintenance and merely because a person is in imprisonment, the same does not amount to discharge or satisfaction of the amount of maintenance. The person sufferring maintenance is liable to be imprisoned so long as the amount/s remains unpaid. As such, there is no bar to commit a person defaulting in payment of maintenance amount/s to imprisonment and also simultaneously to proceed against his properties, be it movable or immovable, for realisation of the maintenance amount/s. this approach of mine is fully supported by a judgment of the Supreme Court rendered in Smt. Kuldip Kaur v. Surinder Singh, .
7. In view of what is stated supra, I set aside the order passed by the Court of Additional Sessions Judge, Mahabubnagar in Crl. R.P. No. 10 of 1992 and restore the order passed by the Court of Judicial First Class Magistrate, Shadnagar in Crl. M.P. No. 571/91 in M.C. No. 9 of 1985. The 1st respondent shall pay the arrears upto October, 1993, within a period of one month from to-day and shall continue to pay the amounts of maintenance awarded to the petitioners regularly by 15th of each English calendar month, the first commencing on 15th November, 1993, and then so on. If there is a default either in payment of the arrears or future maintenance amounts within the time stipulated above, the Judicial First Class Magistrate, Shadnagar shall issue a warrant of arrest of the 1st respondent and commit him to imprisonment till the said amount/s is/are paid.
8. The Criminal Revision Case is allowed.
9. Revision allowed.
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