JUDGMENT
Gopal Krishna Sharma, J.
1. As similar question of law is involved regarding interpretation of Section 125 Clause (3) Cr. PC in both these petitions hence they are disposed by this common order.
2. Mst. Chhoti non-petitioner moved an application under Section 125 Cr. PC for granting her maintenance against petitioner Sukhdeo Singh. The trial court granted Rs. 175/- per month as maintenance allowance to Mst. Chhoti. The petitioner did not make the payment of the maintenance allowance from 17-4-1982 to 17-3-1984 and for recovery of that amount Mst. Chhoti moved a application before the lower court. Then another application was moved by Mst. Chhoti alleging that the maintenance allowance from the period 17-3-1984 to 17-3-1986 has not been paid to her by Sukhdeosingh and prayed that this amount be recovered from him and paid to her. Thus there were two applications regarding arrears of maintenance allowance due towards petitioner Sukhdeo Singh. In both these applications Sukhdeo Singh raised an objection that they are barred by limitation, hence no amount can be recovered from him. That request was not accepted by the trial court and the application of Sukhdeo Singh was rejected. Against that order these two petitions under Section 482 Cr. PC have been preferred.
3. It is not disputed that an award for Rs. 175/- per month being maintenance allowance was granted to Mst.Chhoti and confirmed by this Court on 13-7-1979. As the amount was not paid by Sukhdeo Singh an application for the recovery of the arrear of maintenance allowance was filed by Mst. Chhoti. The first application was for the period from 17-4-1982 to 17-4-1984 and the second application was for the period from 17-3-84 to 1-3-86. It is not disputed that Sukhdeo Singh made some payment after filing the first application for the period from 17-4-1982 to 17-12-1982. It is immaterial that part payment had been made. This has not been disputed that the amount from 17-4-1982 is not due to be paid to Mst. Chhoti. The only point is whether the applications submitted by Mst. Chhoti for the recovery of the maintenance allowance are within limitation or not.
4. Shri Garg learned Counsel for the petitioner brought to my notice the provision of Section 125 Clause (3) along with the proviso. According to this Sub-section (3) if any person so ordered failed to comply with (he order and fails to pay the amount as ordered, the Magistrate may issue a warrant for the recovery of that amount. According to this sub-section if the unpaid amount has not been paid even after the issuance of execution of. warrant, the person may be sent to imprisonment for a term which may extend to one month or until payment is made. There is a proviso to this Sub-section (3) which reads as under:
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.
5. Shri Garg learned Counsel for the petitioner laid much stress on this proviso and argued that this is a mandatory provision and no discretion has been left to the court to avoid this mandatory provision. According to this proviso if an application for the recovery of the amount is to be made then that application has to be filed within a period of 1 year from the date on which the amount became due. Filing of an application within one year is a mandatory provision and if application for the recovery of the amount has not been filed within this stipulated period, then the application is not maintainable. This proviso; being a mandatory proviso no period can be extended for filing such application. Non-petitioner Chhoti has filed these two applications for the recovery of the amount which became due as maintenance allowance towards Sukhdeo Singh after a period of one year on which date they became due. In support of his argument he has cited 1968 Cr. LJ 335, a case of Orissa High Court 1980 Cr. LJ 1212, which is a case of Allahabad High Court, and 1986 Cr. LJ 521 which is also a case of Orissa High Court. In all these cases their Lordships of the High Court have observed that the proviso to Clause (3) of section; 125 Cr. PC is a mandatory provision. The period for filing such application has been given as one year and any application filed beyond this period would not be entertained. Thus the view in these cases is that the provision of Section 125 Clause (3), the proviso being mandatory, the period for filing the application cannot be extended beyond one year.
6. Shri H.S. Sandhu learned Counsel for the non-petitioner Chhoti argued, that the present case is covered by the decision in the case of Purushottam Vaswani v. Asharani 1983 Cr. Law Reporter (Rajasthan) 434 in which the similar question had arisen and this case was decided by me. Referring this case Mr. Sandhu argued that according to the proviso the application should have been filed within one year from the date on which the amount became, due but in view of the decision of Purshottam Vaswani’s case (supra) this is only a technicality of law and this should not be a bar for filing an application. As held in this case the argument as advanced by Shri Garg has no force.
7. I have gone through the case laws cited by Mr. Garg. With due respect to the Hon’ble Judges of the High Court of Orissa and Allahabad, I do not agree with their conclusions. As I have already decided in the case of Purushotam (supra) that the proviso to Section 125 Clause (3) Cr. P.C. is a mere technicality and this should not be a bar for the recovery of the maintenance allowance by a poor lady.
8. The maintenance allowance is granted to a lady against the husband, the husband is always in a better position. The poor lady is at the mercy of the husband to get the maintenance allowance. In the present case as is clear from the order of the trial court that prior to these applications she moved the court for the recovery of maintenance allowance from 17-7-1980 to 17-4-1982, i.e. for a period of 21 months and the amount was Rs. 3675/-, amount was subsequently paid by Sukhdeo Singh, the petitioner with the intervention of the court. Thereafter he again did not pay the maintenance allowance from 17-4-1982 upto 1-31986. All these show that Sukhdeo Singh is in the habit of harassing this poor lady because some allowance has been granted by the trial court against him, he failed to pay it and the only power with Sukhdeo Singh is to harass the poor lady. The order of the trial court about grant of maintenance allowance was final order and he has to pay this amount but the only power with Sukhdeo Singh is not to pay the allowance regularly, in time and always to be harassing the poor lady and compelled her to come every time to the court to recover the allowance which became due towards him. In such circumstances the person who takes shelter of the technicalities of the law and objects that the applications are barred by limitation as they have not been filed within one year is nothing but a farce. A poor lady who depends on the maintenance allowance and also depends on the mercy of the husband to make the payment of the allowance can only approach the court and so the condition of that poor lady who every time comes to the court with the request that her husband has failed to pay the maintenance allowance. What a poor lady can do in such circumstances and Sukhdeo Singh now comes to the court and takes shelter of the technicality of law that the application is barred by limitation. It is the moral duty of the husband to obey the order of the court and make payment to the lady without harassing her but here every time he is harassing the lady by not making the payment taking these technical objections. I again reiterate the judgment passed in Purushottam Vaswani’s case (Supra) and see that these objections are false and frivolous and the proviso to Sub-section (31 of Section 125 Cr. P.C. is not mandatory as giving harshness to the lady. The period can be extended and the delay in filing such applications can be condoned by the court in the interest of justice.
9. As such both the petitions have no substance and are hereby dismissed.